
Glass. 
Book. 



COPYRIGHT DEPOSIT 



6~l ^ 



2 
THE LEGISLATURE OF THE PROVINCE 
OF VIRGINIA 

ITS INTERNAL DEVELOPMENT 



STUDIES IN HISTORY, ECONOMICS AND PUBLIC LAW 

EDITED BY THE FACULTY OF POLITICAL SCIENCE 
OF COLUMBIA UNIVERSITY 

Volume XXVIII] [Number 2 



THE LEGISLATURE OF THE 
PROVINCE OF VIRGINIA 

Its Internal Development 



BY 

ELMER L MILLER, Ph.D. 

Professor of History and Political Science, State Normal School, Chico, Gal. 




THE COLUMBIA UNIVERSITY PRESS 

THE MACMILLAN COMPANY, AGENTS 

London : P. S. King & Son 

1907 



Ci-, 



LIBRARY of CONSRESS 

Two Copies Rtceived 

DEC 23 190? 

CLASS /!>. XXC.No. 
COPY B. 



/«f^//^ 



■V 



Copyright, 1907 

BY 

ELMER I. MILLER 



TABLE OF CONTENTS 



PAGE 

Introduction 13 

1. General difficulties of the study » 13 

2. Special difficulties of the study 13 

3. General type of government before 1619 14 

(1) No local self-government at first. 14 

(2) Law-making bodies 14 

(3) Forms through which the government went 15 

(a) Grants to Raleigh feudal in character 15 

(b) Feudal estate supplanted by commercial company 15 

(c) Character of charter of 1 606, etc 15 

(d) Dale's Code 16 

(e) Factions in the company make possible frequent changes 17 

CHAPTER I 
The Beginning of the Legislature under the London Company 

1. First proposal of a charter 19 

2. Governor instructed to call assembly 19 

3. Settlements grouped in four large corporations 20 

4. Assembly of 1 619 , 20 

(i) List of members, place of meeting 20 

(2) Speaker 20 

(3) Qualifications of burgesses zi 

(a) Warde's plantation 21 

(b) Martin's plantation 22 

(4) Committees appointed 22 

(a) Of burgesses on the four books of privileges, orders and laws. 23 

(b) Of burgesses, councilors and governor on the four objects of 

the meeting 23 

(5) Reports of committees on privileges and orders 23 

(6) Governor's instructions referred to committee 23 

(7) Governor prorogues assembly 23 

(8) Laws to be sent to each plantation and to England 24 

(9) Message of assembly to the company 24 

167] 5 



5 CONTENTS [i68 

PAGE 

( lo) Subject-matter and character of acts passed by first legislature 24 

(a) Petitions to the company 24 

(b) Character of the laws 25 

( c) A tax levied to pay officers 25 

(d) Assembly asks for power to annul orders of the company ... 25 

(11) Estimate of assembly 25 

(12) Action of company on assembly laws 26 

5. Question of assembly in 1620 26 

6. Ordinance of 1621 27 

( 1 ) Assembly provided for 27 

( 2) Powers of assembly 27 

(3) Validity of acts of assembly • - 27 

7. Governor Wyatt's commission .... 28 

8. Assembly of 1621 - 28 

9. Assembly of 1 623-4 29 

( 1 ) Acts concerning religion 29 

(2) Taxes and appropriations under control of the assembly 29 

(3) How the inhabitants might be called for public service 29 

(4) Burgesses might not be arrested for debt 29 

(5) Monthly courts established 30 

(6) Other acts of assembly 30 

(7) John Pountis sent as first agent of assembly to England 30 

(8^ Acts not ratified by company 30 

10. Attacks on the company 30 

(1) Pamphlets of Johnson and Butler 30 

(2) Special commission to inquire into conditions in Virginia 31 

(3) Action of assembly m relation to commission 31 

(a) Ignores commission and appeals to privy council 31 

(b) Commission demands reply 31 

(c) Assembly refuses to surrender charter and demands powers of 

commissioners 32 

(d) Commissioner Pory secures copies of letter to privy council 

from Secretary Sharpless 32 

(e) Sharpless punished 32 

1 1 . Success of the company 32 

(1) Sandys' party gave self-government to Virginia 32 

(2) Uncertainty of liberal control 32 

(3) Change to royal government probably for the best 33 

12. Anxiety as to king's attitude toward an assembly 33 



169] CONTENTS ' 7 

PAGE 

CHAPTER II 

The House of Burgesses — Apportionment, Length of Term, and 
Qualifications of Members 

1. Importance of House of Burgesses in this .discussion 34 

2. Purpose of next four chapters 34 

3. Desirable to know attitude of English government after fall of company. 34 

4. Special commission appointed 34 

5. Two views held as to status of Virginia 35 

6. Probable course of the commission 35 

7. Attitude of Charles 1 36 

8. Constitution of 1625 36 

9. Absence of legislature • 3^ 

10. Captaia Harvey's propositions concerning a legislature 37 

1 1. Was there a session of assembly before 1629 37 

12. Possibility of other session before 1628 38 

13. Prevalence of assemblies under Charles 1 39 

14. Assembly at first composed of governor, councilors, and burgesses 39 

15. Method of designation of two houses 40 

16. Members 40 

(i) Number and apportionment of members ' 40 

(a) Before the organization of counties 40 

(b) Governor and council directed to form counties. 41 

( c) Formation of counties 41 

(d) Apportionment of burgesses to counties irregular 41 

(e) Assembly of 1645 limited burgesses to four to each county •• 42 

(f) Number reduced to two from each county, 1661 42 

a. Exceptions 42 

(g) Finally fixed at two from each county 44 

(h) City or borough representation 44 

(i) Parish representation 44 

(2) Length of the term 46 

{a) Uncertain 46 

(b) Period of a year or less 46 

(c) Period beyond a year 46 

(d) Period of two years 47 

(e) Assembly of restoration 48 

(f) Period not greater than seven years 48 

( 3) Qualifications of members 49 

(a) Slight reference to in early records 49 

(b) Residence and denizenation 49 

(c) Age 51 

(d) Character 51 

a. As to moral conduct 51 



g ■'■' CONTENTS " [170 

PAGE 

b. As to allegiance to the government 52 

c. As to wealth and station 53 

(e) Disfranchised classes 55 

(f ) Religion 55 

(g) Holding other offices forbidden 56 

(h) Property 5^ 

CHAPTER in 

The House of Burgesses— Suffrage, Election, and Judging the 
Election and Qualifications of Members 

1. Suffrage 59 

(i ) Qualifications for 59 

(a) Residence and citizenship 59 

(b) Property 61 

(c) Religion 63 

(2) Disfranchised classes : 63 

(3) Voters privileged from arrest 65 

(4) Compulsory voting 65 

2. Elections 65 

(1) Management of 65 

(a) Where held 66 

(b) When 66 

(c) How called 67 

(d) Officers 68 

(e) Method of casting the vote 68 

(2) Description of 70 

(3) Returns 71 

3. Judging the election and qualifications of members 72 

(i) By the assembly 72 

(2) By a committee 72 

(a) Process in committee 73 

(b) Contests 73 

a. How conducted 73 

b. Causes of 74 

ax. Illegal voting 74 

b\. Treating 75 

ex.. Bribery 76 

(c) Cases 77 

(3) Penalties for violation of the law 79 

4. Vacancies, how filled 79 



171] CONTENTS g 

PAGE 

CHAPTER IV 

The House of Burgesses, Organization and Procedure 

1. Officers 81 

( 1 ) Enumerated 81 

(2) Treasurer 81 

(3) Speaker ' 82 

(4) Secretary of colony 83 

(5) Clerk of burgesses 83 

(6) Doorkeepers 85 

( 7 ) Sergeant-at-arms 85 

(8) Messenger 85 

(9) Chaplain 85 

2. Privileges and immunities of members 86 

( 1 ) Freedom from arrest 86 

(2) Freedom from compulsory service as sheriff 88 

(3) Leave of absence 89 

(4) Protection from slander 89 

3. Punishment of members 91 

( 1 ) General statement , 91 

(2) Penalties 92 

(a) Censure 92 

(b) Fine 92 

(c) Forfeiture of seat 94 

(d ) Suspension 94 

(e) Expulsion 94 

CHAPTER V 
The House of Burgesses, Organization and Procedure (Continued) 

1. Salaries of members and officers 96 

( 1 ) Members 96 

( a) How and by whom paid 96 

(b) Amount 96 

(2) Officers 98 

(a) Speaker . - 98 

(b) Speaker and treasurer 99 

(c) Other officers 99 

2. Methods of conducting business 100 

( 1) Oaths 100 

( 2) Opening of the session loi 

(3) Closing of the session 102 

(4) Rules of the house 103 

(5) Revision of the laws 106 



lO CONTENTS [172 

PAGE 

(6) Committees lo? 

( 7) Daily session 109 

(8) Process of law-making • 109 

(9) Quorum m 

(10) Confusion of different subjects in one bill — riders iii 

(11) Resemblance to present-day methods 112 

CHAPTER VI 
The Governor as a Part of the Legislature 

1 . General introduction 

(1) Executive generally precedes the legislature and grants power to it. 

(a) New England colonies an exception 

(b) Virginia under London Company a partial exception . 

(2) Virginia under royal authority — Re- established legislature was 

grant of executive 

(3) Executive forced by own needs to establish a legislature 

(4) Tendency of legislature to reduce executive influence in legislation. 

2. Main purposes of the chapter 

3. Place of governor in the unicameral legislature 

(i) Much depended on the personality of the governor 

(2) What the records show 

(3) Much variation in his power 

(4) Independence of the assembly 

(a) Case of H arvey 

(b) Control under commonwealth 

(c) Bacon's rebellion 

4. Place of governor in the bicameral legislature 

( 1 ) Period of more serious contests 

(2) Absentee governors 

(3) How governor could influence legislation 

(a) Through power to call, prorogue, and dissolve assemblies • . . 

(b) Through veto 

(c) Through power to appoint and suspend councilors 

(d) Through appointive power of governor 

(e) Through direct commands to assembly 

(4) Quarrels between governors and assembly 

(a) Nicholson 

(b) Spotswood 

(c) Dinwiddle 

(5) Popular governors 

(6) Relation of governor and council 

( 7) Clerk of burgesses becomes spy for the governor 

(8) Conclusion 



13 
13 
13 
13 

13 
14 
14 
15 
15 
15 
15 
16 
16 
16 
17 
17 
17 
17 
17 
18 
18 
22 

25 

27 
27 
29 
29 

31 
31 
32 
33 
33 
34 



173] CONTENTS II 

PAGE 

CHAPTER VII 

The Council as a Part of the Legislature 



1. Purpose of the chapter I3e 

2. Council more continuous than the house of burgesses 135 

3. Members 13^ 

(i) Number I3e 

(2) Length of term 137 

(3) Quahfications 138 

(a) Residence 138 

(b) Character 138 

(c) Property T39 

(d) Religion 139 

(c) Office-holding 140 

4. Officers 140 

5. Privileges and immunities of the councilors 141 

( 1 ) P'reedom from arrest 141 

(2) Rank 142 

(3) Exemption from taxes 142 

(4) Protection from slander 142 

6. Punishment of councilors 143 

7. Salaries 144 

8. Sessions of the council 145 

9. Methods of doing business 145 

10. Relations of the council to the burgesses 146 

(i) Under the unicameral system 146 

(2) Tendency to develop different functions and spirit of rivalry- .... 146 

(3) Initiation of legislation left to house 146 

(4) Question of superiority of the council 147 

(5) Disputes between the two houses 148 

(a) Over presentation of address to governor 148 

(b) Question of councilors wearing hats in conference committees. 148 

(c) Removal of capital 149 

(d) Right of burgesses to search journals of council 150 

(e) Other disputes 151 

(6) Conference committees 153 

C7) On the whole the two houses worked in harmony 153 

CHAPTER VIII 

Features of the Legislature as a Whole 

1. Purpose of the chapter 154 

2. Place of meeting of the legislature 154 



12 



CONTENTS [174 



PAGE 

3. The right of petition to the assembly 155 

( i) How done • 155 

(2) Subjects of petitions 156 

4. Control of the money questions 157 

(i) Taxation 157 

(a) Early claim of assembly to taxing power 157 

(b) Burgesses claim the right to make the tax levy 158 

(c) Suggestions from England must have assent of assembly .... 159 

(d) Terms of tax not always just 160 

(e) Method of levying tax 161 

(f) Discrimination in favor of Virginia ship owners 161 

(g) Where did the assembly get the power to tax? 161 

(2) Appropriations 1 62 

(a) At first not entirely in control of assembly 162 

a. Governor and council sometimes had control 162 

i. Salaries of king's officers usually not in hands of assembly. 162 

{bi) Disputes with the governor over 163 

(3) Attempts to control money questions gave rise to idea of divergent 

interests between colony and mother country 165 

5. Appointment and administration 166 

6. Judicial functions of the assembly 168 

(i) Burgesses attempt to become supreme court 168 

(2) Exercise of original jurisdiction 169 

(3) Exercise of appellate jurisdiction 169 

(a) Conditions of appeal 1 69 

( b) Assembly deprived of 1 70 

(c) Assembly tries to continue 170 

(4) Appeals to England 171 

(5) Cases of contempt 171 

(6) Conclusion 172 

7. Treaty making 1 72 

8. Establishment of two houses 173 

Concluding remarks 1 74 

Bibliography , 177 

Vita 183 



INTRODUCTION 

Any attempt at tracing the growth of the legislature in 
an American colony meets with many difficulties. One of 
these is that commonly the records for the early period are 
very incomplete. In a few of the colonies we have no 
records of some of the earliest forms of government save 
the charters. These are necessarily very general, and there- 
fore show very little of what plans were attempted, and 
how far they were successful. A second difficulty is that 
the few contemporaneous accounts which have been pre- 
served, written chiefly by those who took part in the 
affairs of those times, are, generally, partisan. In fact they 
are usually attempts to justify the persons writing them. 
Another difficulty is that copies of many of the earlier laws 
are no longer extant. The importance of the laws is stated 
by Hening in his first volume of the Statutes at Large of 
Virginia, when he says, " Indeed, until we come to the 
laws of a nation, it is impossible to form a correct idea 
of its civil polity, or of the state of society." ^ In addition 
to having lost some of these laws, we are handicapped by 
the fact that we do not know the reasons the legislators 
had for making certain other laws which we do possess, 
the arguments used to secure their adoption, and how 
fully they were enforced. Occasionally, but only occasion- 
ally, tradition throws a sidelight on the actual success or 
failure of the laws. 

To trace the growth of the legislature of Virginia is not 

* Hening, Virginia Statutes at Large, i, Preface, iii. 
175] 13 



14 THE LEGISLATURE OF PROVINCE OF VIRGINIA [176 

an easy task. There are periods in which one or all the 
difficulties mentioned above are met. There are also periods 
when the legislative is indistinguishable from other powers 
of government, both because these powers were not exe- 
cuted by separate bodies, and because, even when separate 
bodies did act, their functions overlapped, and they invaded 
one another's rights. 

In the report of the special commissioners sent to Vir- 
ginia (1676) to inquire into the causes of Bacon's rebellion, 
the commissioners said that they supposed the Lords of 
Trade wanted an account of the government as it then was, 
and not a full history of it from the first settlement. This 
last they said would be very hard to give " by reason of ye 
negligence of former times in transmitting anything of 
that nature to their successors." If there were such diffi- 
culties in 1676, how much greater difficulties must now ex- 
ist, with two and a half centuries more in which records 
could have been lost and destroyed. 

Virginia, like most of the southern colonies, began with- 
out any form of local self-government. It had no true 
legislative body and it had no way in which the people could 
express their will in government. The colony was estab- 
lished and governed by a commercial company, and not un- 
til that company itself took on a political phase and became 
a center of opposition to the crown, did it think of grant- 
ing to the colonists any part in the government of Virginia. 
This grant first came in 1619 with the calling together of 
the first American legislature at Jamestown. Before 1619 
such laws as were made, were enacted by bodies whose chief 
business was administrative or executive in character. 
These bodies were the king's council, the London Company, 
and the governor and council in Virginia. Some of the 
laws enacted by these bodies reached Virginia in the form 
of charters; along with these were instructions and or- 



177] INTRODUCTION I^ 

dinances interpretative of these charters. In such legisla- 
tion the people could have no part. 

From the granting of the first charter to Sir Walter 
Raleigh, in 1584, to the calling of the assembly of 1619, there 
were many changes in the form and character of the gov- 
ernment of Virginia. Though it is not desirable to give an 
extended account of those changes because they did not 
affect the legislature in any great degree, yet a brief review 
of them should be given in order to show what the colony 
was accustomed to at the time the first assembly met. 

The grants ^ to Raleigh had made Virginia a private es- 
tate of the feudal type. This gave not only the territorial, 
but the governmental rights over the province to the pro- 
prietor. No permanent colony was planted under this char- 
ter, but it shows to what degree monarchical ideas con- 
trolled the minds of those who were interested in coloniza- 
tion. Under such a system there would have been no place 
for the governed to take part in governing. 

After the lapse of a few years, the idea of the individual 
estate was replaced by the notion that a commercial com- 
pany was a far better support for colonization. It was with 
this idea that several men in 1605 petitioned for a charter 
to colonize in Virginia. The charter was granted to the 
London and Plymouth Companies April 10, 1606,^ and 
under it the Jamestown colony was established. As Pro- 
fessor Seeley says, this was the beginning of " the creation 
of a still larger Britain comprehending vast possessions be- 
yond the seas," which was one of the two large movements 
of the seventeenth century.^ 

A glance at the charter shows it to be very dififerent from 

^Poore's Charters, ii, 1379-81. 

^ The old style dates are here commonly used. 

'Seeley, J. R., Expansion of England, 10. 



1 6 THE LEGISLATURE OF PROVINCE OF VIRGINIA [i^g 

that given to Raleigh. A company under a feudal organi- 
zation could hardly have been a source of danger to the 
same degree as an individual with that same power, yet 
nevertheless the king saw fit to change the type. He did 
not make a feudal grant, but kept almost all power in his 
own hands. So much power in the hands of the king was 
almost as dangerous as it had been in the hands of a private 
individual. Furthermore with so much power in the hands 
of the king the company was sure to be weak. So it 
proved, and the company soon began to ask for more au- 
thority. It gradually got more authority until by 1619 it 
came to have almost entire control. The liberal spirit 
then dominant in the company led it to share this power 
with the colonists themselves, through their representatives 
in the assembly. 

Throughout the existence of the company a certain 
amount of control was exercised by " courts " of the com- 
pany. These were held in London and soon came to exer- 
cise nearly all legislative power save what they saw fit to 
give to various authorities in the colony. The changes 
made during the period from 1607 to 1619 were toward 
freedom of the company, but in no way guaranteed the free- 
dom of the colonists. In fact the governor, appointed by 
the company in England, recognized no responsibility save 
to that company. The natural result was that the character 
of the governor determined the character of the govern- 
ment, though the governor's action was limited by the fear 
of the company in England. 

Under this system either Gates or Delaware introduced 
a code of laws based on the military law in force in the 
Netherlands. Later some additions to it were made by 
Dale and it is known as Dale's Code.'^ It was very severe 

^This code is printed in Force's Tracts, iii, no. iii. 



179] INTRODUCTION jy 

in its penalties. Its laws, like all that preceded, were im- 
posed on the people without their consent, and probably in 
spite of the:r opposition. Therefore they form no real 
part of the work of a provincial legislature. Although 
the governor and council repeatedly spoke of these laws 
as operative on the inhabitants generally, it may be but 
fair to state that it is doubtful if these laws had applica- 
tion to any except the servants of the company.^ The 
nature of the laws would hardly make them applicable to 
the free and independent colonists. Nevertheless the fact 
that some of them were in force in the colony for 
several years, and that many persons who later were to 
have a part in making the laws or at least in electing the 
representatives to the assembly, were brought directly or in- 
directly into contact with them, make it probable they had 
some influence on the ideas of those representatives. 

The trials of the colony and the trials of the company in 
governing it, gradually developed factions in the company 
itself. These came to be known as the Sandys-Southampton 
and the Sir Thomas Smith (later Warwick) factions. 
These factions were to some degree bound up with the 
politics of England. They were parts of political parties. 
They were therefore subject to the same conditions as poli- 
tical parties everywhere; they were changeable in policy; 
they were unstable in their possession of power. The 
colonists were then not certain that any form of govern- 
ment they might have at any particular time would be per- 
manent. So long as permanence depended upon parties 
and factions whose dividing lines were determined by in- 
terests other than those of the colonists, there was not much 
hope of a permanent and definite policy. It was neverthe- 
less one of these recurring changes that brought with it that 

'Doyle, Eng. Col. in Am., I, 140. 



l8 THE LEGISLATURE OF PROVINCE OF VIRGINIA [jgo 

first factor of stability, the assembly. With an assembly of 
the people's representatives, a certain permanence was given 
to both form and policy of government. It was to the 
Sandys faction that this innovation was due. The acces- 
sion of that party marked the period of liberal ideas in the 
company and through the influence of those ideas we have 
the beginning of the period of self-government in the 
colony. 



CHAPTER I 

The Beginning of the Legislature under the London 

Company 

Although Gabriel Archer is said to have proposed a 
" parliament " for Virginia as early as 1608/ none was 
called before July 30, 1619. Before that date the freemen 
of Virginia had taken no part in their own government, 
save that performed by the few appointed to local offices 
and by members of the colonial council. This was very 
little, as the colonists themselves had no voice in the selec- 
tion of these officials." Indeed, they were often persons 
who could not have been chosen by a vote of the people. 
Now, a most important change was about to take place. 
The instructions of the company ordered the governor to 
send out his summons for the election and return of bur- 
gesses and to recall the absent members of the council. 
The assembly was to meet at Jamestown and was to con- 
sist of the governor, the councilors, and two burgesses to be 
freely elected by the inhabitants of each plantation, hun- 
dred, or ward. The exact basis of representation is un- 
certain, but it seems probable that any settlement in which 
several persons dwelt was allowed to choose members. 

'Osgood, I, 49; Arber's ed. of SmitJi s Map of Virginia, part ii, 
chap, iii, p. 104, says, " Wee not having any use of Parliaments, plaies, 
petitions, admirals, recorders, interpreters, chronologers, courts of plea, 
nor justices of the peace, sent Maister Wingfield and Captaine Archer 
with him, for England, to seeke some place of better imploiment." 

" Va. Hist. Collec. New Series, vii, 76-7, 120-1, 126, 127. 

181] 19 



20 THE LEGISLATURE OF PROVINCE OF VIRGINIA [182 

There were twenty-two burgesses chosen, but those from 
Martin's Hundred were refused their seats for reasons to 
be given later. 

According to Brown ^ the settlements of Virginia were 
grouped into four large corporations or boroughs. These 
were composed of smaller boroughs each of which elected 
two burgesses. The large corporations were the City of 
Henricus with one borough; Charles City with live 
boroughs, (Martin's Brandon was excluded in the assem- 
bly, leaving but four represented) ; James City with four 
boroughs ; Kiccowtan with one borough. Brown supposes 
that the election was by ballot; " but, if so, this method was 
not adhered to, for we find no ballot used in Virginia after 
1680, and probably none was before that date. Brown 
seems to think this arrangement of boroughs and corpor- 
ations was part of a design to have uniformity of govern- 
ment throughout Virginia as had been ordered by the 
company.^ 

The names of the members of this assembly,* present at 
Jamestown on the day appointed for the opening of the 
session, Friday, July 30 (O. S.) 1619, are given in Secre- 
tary Pory's report. They met in the church as that was 
the most convenient place. The governor, Sir George 
Yeardley, took his accustomed seat in " The Quire " with 
the council on both sides. John Pory, the secretary, of the 
colony, being appointed speaker, did not now sit with the 
council as usual, but before the governor with John Twine, 
Clerk of the assembly, at his side. Thomas Pierse, the ser- 
geant, stood at the bar awaiting the commands of the as- 

' Brown, Alex., First Reptiblic, 313-14. ^Ibid., 313-14. 

^ Ibid., English Politics in Early Virginia History, 28. 
*W. W. Henry, Virginia Magazine of History and Biography ^ ii, 
58-60, says that the members were men of consequence. 



183] THE BEGINNING OF THE LEGISLATURE 2 1 

sembly. It is important to note that it is probable the 
speaker was not elected by the burgesses. He was not even 
one of their number. Yet as a member of the council he 
was entitled to a seat in the assembly and was thus a mem- 
ber of the body over which he presided. Whether the ap- 
pointment was made by the governor, by the council, or by 
the whole assembly is uncertain ; but probably it was made 
by the governor. Doubtless Pory was selected because as 
secretary of the colony he had an intimate knowledge of the 
affairs of the colony, and because he was supposed once to 
have been a member of the English House of Commons.^ 
Following the custom of that house the members sat with 
their hats on.- 

The burgesses took their places in the choir while Mr. 
Buck, the minister, opened the session with prayer. When 
this was ended, the burgesses retired to the body of the 
church and as each member was called in order by name he 
took the oath of supremacy and then entered the assembly. 
When the name of Captain Warde was called the speaker 
took exception because Warde had no title nor commission 
for his land. It was the property either of the company, 
or of Captain Martin, and in either case he was not en- 
titled to represent it. He was ordered to absent himself 
until the assembly could decide his case. The same day the 
assembly decided that since Warde had been at great cost 
and sacrifice to establish his plantation, and had done much 
for the colony, and that since the commission authorizing 
the assembly provided for two burgesses from each plan- 
tation without restraint or exception, he and his lieutenant 
should be admitted if he would promise to secure a proper 
title to his land before the next assembly met. This pro- 
mise he made and was admitted by an unanimous vote. 

^ See note 6, p. viii, Colonial Records of Virginia. ''■ Cooke, 115. 



22 THE LEGISLATURE OF PROVINCE OF VIRGINIA [184 

The governor asked that the credentials of Martin's bur- 
gesses be examined. Martin's patent exempted him from 
obedience to the laws and authority of the colony except in 
matters of defense. This was dangerous to the colony and 
for this reason, Martin's burgesses were ordered to with- 
draw until he should appear before the assembly in per- 
son and agree to surrender that part of his patent. If he 
should not surrender it the burgesses were to be excluded 
entirely as spies, having offered to help make laws they 
and their constituents were not obliged to obey. More- 
over, Martin's colonists had dealt unfairly with the Indians 
and caused trouble between them and the whites. So the 
assembly ordered a warrant to be issued summoning Martin 
to appear. He did so on Monday, August 2, and being 
asked to surrender the disputed part of his patent, he re- 
fused. His burgesses were not allowed to re-enter the 
assembly. The assembly requested the company in Eng- 
land to make Martin's patent consistent with the charter 
to the colony. From these two cases we see that from the 
beginning the Virginia assembly exercised the right to de- 
cide the qualifications of members, and to expel members 
who had been sworn and admitted, if occasion for such ac- 
tion should arise. The chief qualification decided upon 
seems to have been subjection to the laws of Virginia. The 
case of Martin shows that mere allegiance to the company, 
or even to England, was insufficient if separated from alle- 
giance to the colony itself. 

After the speaker had issued the warrant for Martin's 
appearance, he made a brief address giving the object of 
the meeting of the assembly. He then read the commis- 
sion for establishing the council of state and the general 
assembly, and the great charter or commission of privi- 
leges, orders, and laws sent from England with Yeardley.^ 

^ The substance of this commission is found in the Brief Declaration , 81 . 



185] THE BEGINNING OF THE LEGISLATURE 23 

For convenience these privileges, orders and laws were ar- 
ranged in four books and referred to committees in order 
that they might see whether they were in perfect harmony 
with the state of the colony. If not, as this charter was to 
bind them and their heirs forever,^ the committees were to 
prepare petitions to the company to change the orders and 
laws so as to make them suitable to the colony. The com- 
mittees, composed entirely of burgesses, having been ap- 
pointed, the assembly had finished its first half day's work, 
and adjourned for dinner. 

In the afternoon the speaker stated the four objects of 
the assembly, namely : to consider, first, the great charter 
•of orders, laws, and privileges; second, which of the in- 
structions given to the present and former governors should 
be enacted into laws; third, what laws might be proposed 
by the members; fourth, what petitions were fit to be sent 
home to England. The governor proposed that he and 
those not then engaged on the other committees should 
examine the instructions which had been sent to governors.^ 
The other committees, after three hours of deliberation, re- 
ported, and the assembly adjourned for the day. The 
committee in its reports on the last two books of privileges 
and orders found no fault with them; the ratification of 
these was then put and carried unanimously and with ap- 
plause. The assembly then ordered the speaker to return 
thanks to the company for the many privileges granted. 
With the intention of enacting some of them into laws, the 
assembly next discussed certain instructions which had been 
sent to the governors, but after considering some other 
matters it referred the instructions to the committees pre- 
viously appointed, and adjourned for the day. 

Because of the extreme heat and the sickness of several 

^ Col. Rec, 14; Cooke, 116. ^ Brown, First Republic, 317 et. seq. 



24 THE LEGISLATURE OF PROVINCE OF VIRGINIA [i86 

members, the governor resolved to make Wednesday, Au- 
gust 4, the last day of the session. This fact seems to 
indicate that the governor had the power to prorogue the 
assembly at pleasure. During th!s last day the bills which 
had been considered previously were read a third time and 
passed. The bills of private members now reached a final 
reading and passage. The speaker was instructed to en- 
gross the laws and to send a copy to each plantation and one 
to England. The assembly recognized its work as im- 
perfect and sent the following message to the company : 

The Assembly doth most humbly crave pardon that in so 
shorte a space they could bring their matter to no more per- 
fection, being for the present enforced to send home titles 
rather then laws. Propositions rather then resolutions. At- 
tempts then Achievements, hoping their courtesy will accepte 
our poore endeavor, and their wisdome will be ready to sup- 
porte the weakness of this little flocke. 

Governor Yeardley then prorogued the assembly to March 
I, following. 

The foregoing account gives all that is known of the or- 
ganization and procedure of the first assembly of Virginia. 
It had in it many elements of the modern law-making body, 
though some of its methods, common at that time, have 
now passed out of use. 

The real legislative work of the assembly began on Satur- 
day, July 31, when the petitions prepared by the commit- 
tees were presented. They asked that former grants of 
lands be confirmed and new grants be made to the early set- 
tlers, that shares of lands be given to all male children born 
in Virginia, that men be sent to occupy the company lands 
and to till the lands of the ministers, that rents be made pay- 
able in commodities instead of money, that a sub-treasurer 
to reside in the colony be appointed, that men be sent to 



187] THE BEGINNING OF THE LEGISLATURE 25 

build a college, etc. These articles do not have any of 
the military character of Dale's code. Instead of dealing 
with the personal control of unruly individuals they relate 
to legal and economic questions. This feature is also char- 
acteristic of the laws passed by this same assembly. It 
shows that these freemen, representing other freemen, had 
uppermost in their minds the questions that affected their 
immediate welfare and safety. The laws refer to the re- 
lations the whites were to have to the Indians, to the pun- 
ishment of idlers, renegades, gamblers, and drunkards, to the 
payment of church dues, to the planting of corn, mulberry 
trees, flax, hemp, and vines, to the regulation of trade and 
the acts of servants, to the regulation of the duties of min- 
isters, to the religious duty of the colonists, and to the con- 
duct of servants. The assembly also acted as a court and 
tried two cases. 

The assembly levied a tax of one pound of tobacco on 
every male inhabitant above sixteen years of age to pay 
for the services of its officers, speaker, clerk, sergeant, and 
provost marshal of James City. This tax was to be re- 
ceived by the speaker, " who not only first formed the same 
assembly and to their great ease and expedition reduced all 
matters to be treated of into a ready method, but also his 
indisposition notwithstanding, wrote or dictated all or- 
ders and other expedients and is yet to write several books 
for all the General Incorporations and plantations both of 
the great charter and of all the lawes," and the speaker 
was to distribute the tobacco among the officers according 
to rank. The speaker was also to report to the company in 
England. The assembly asked for power to annul the or- 
ders of the company as had been promised. 

August 4, the governor prorogued the assembly to 
March 7, following, and in the meantime he dissolved it. 
This assembly was pre-eminently one of action. They de- 



26 THE LEGISLATURE OF PROVINCE OF VIRGINIA [igg 

bated little and decided promptly. If we consider that, 
counting both the day of meeting and the day of adjourn- 
ment, they were together only six days, one of which was 
Sunday when they did no business, this first American legis- 
lature, in comparison with those of the present day, cer- 
tainly made a most excellent record/ 

The acts passed by the first assembly were sent home for 
the inspection and approval of the company. In the records 
of the company there are several references to these acts. 
Sir Edwin Sandys had thought them " in their greatest 
part to be very well and judiciously carried and performed," 
and m.oved that a committee be appointed to draw them into 
proper heads and forms. On May ii, 1620, the commit- 
tee apparently asked for instructions, as they said they did 
not know just what was expected of them; they then asked 
that others be added to the committee.^ On May 15, the 
committee asked for six week's extension of time because 
the task was so difficult.^ Whether the task was dropped 
because of its difficult}^, or for other reasons, is not known, 
but the records of the company give no further informa- 
tion as to the fate of the work of the first American legis- 
lature. 

Though the assembly of 1619 was prorogued to March i, 
1620, and later dissolved, some authorities say it met in 
May, 1620; * the absence of any account or notice of such 

'Sainsbury, i, 22, gives an account of the assembly of 1619; Virginia 
Historical Collection, New Series, vii, 56, 58, 60; also Bancroft, as before 
given. 

^Manuscript Records, i, 348. ^ Manuscript Records , i, 357. 

" Hening, op. cit., i, 119, refers to Beverley as authority but expresses 
doubts as to any assembly having been held at that date. Beverley calls 
that the first assembly, though it could not have been the first. Brown 
says it was customary to take a census just before a meeting of the gen- 
eral assembly, and that such a census was taken in March, 1620. He, 
therefore, thinks Beverly may have referred to a second assembly. 



189] THE BEGINNING OF THE LEGISLATURE 27 

meeting in the company records makes it somewhat doubt- 
ful whether a session was then held. 

In 1 62 1, Sir Francis Wyatt, an able man and good gov- 
ernor, was chosen to succeed Yeardley, who wished to re- 
lire/ On July 24, 1 62 1, the treasurer and company passed 
an ordinance providing for the two councils in Virginia ; ^ 
one to be called the " Council of State " and to be chosen 
by the company, was an advisory council to the governor 
and was to reside near him in Virginia; the other was to 
consist of the council of state and two burgesses out of 
every town or plantation. The burgesses were to be chosen 
by the inhabitants of each plantation. This council was to 
be called the general assembly. It was to 

have free power to treat, consult and conclude, as well of all 
emergent occasions concerning the public weal of the said 
colony and every part thereof, as also to make, ordain and 
enact such general lav/s and orders, for the behoof of the 
said colony, and the good government thereof, as shall from 
time to time appear necessary or requisite.^ 

The general assembly and council of state were required to 
follow the laws and practices of the English government so 
far as that was possible, as was required of the company by 
its charter. No law or ordinance of the assembly was to 
be valid and of force until ratified in a general quarter court 

though no record of it exists. This seems too little evidence to support 
such a view, for since the company instructed Governor Wyatt, July 
24, 1621, to take such a census, and did not connect it with a session of 
the assembly, census-taking does not seem to be inseparably connected 
with assemblies. 

^ Va. Hist. Col., vii, 105. 

* Similar provisions of government were made Nov. 28, 1618 and pos- 
sibly earlier ; Brown, First Republic, 292, 309, 329, 455; see also Chal- 
mer's History of Revolt, i, 16. 

^Hening, op. cit., i, 111-112. 



28 THE LEGISLATURE OF PROVINCE OF VIRGINIA [190 

of the company. After the government should be thor- 
oughly settled it was the intention of the company to make 
no act of the company's court binding on the colony until 
ratified by the general assembly/ This right of double rati- 
fication had been promised in 16 18, and in August, 16 19, 
the assembly had asked that it be given as soon as possible.^ 

From the commission ^ issued to Wyatt at the time when 
the ordinance was passed, we find that a majority vote of 
the assembly was required to pass any measure. The gov- 
ernor had a negative voice or veto.^ By instructions "^ 
bearing the same date the governor was ordered to sup- 
press drunkenness, gaming, and excess in dress. Laws for 
this purpose had been enacted by the first assembly, but as 
the acts of the session were probably never ratified by the 
company in England, the governor was to enforce the in- 
structions instead of the law. 

Under these instructions Governor Wyatt called an as- 
sembly in November or December, 1621.'^ The records of 
the session are not preserved, but the records of the 
company show an assembly to have been held at that time. 
The session seems to have been devoted to carrying out 
the instructions of the company for the encouragement of 
the production of staple articles other than tobacco. The 
adoption of means to encourage the culture of the mulberry 
tree and the grape vine, and the production of silk and wine 
took most of their attention. Also some of the wants of the 

^Holmes, Annals of America, i, 214-5; Hening, i, 112-3. 

^ Brown, First Repitblic, 321, 456. ^Hening, i, 113-4. 

* In the council as an executive body the governor had a casting vote, 
but not a veto. This may have applied at a later time in legislation. 
See instructions referred to in next note. 

^Hening, i, 1 14-18. 

^Stith, and other earlier historians make no mention of this session. 



igi] THE BEGINNING OF THE LEGISLATURE 29 

colony were enumerated. The session was not of any great 
political importance/ 

In March, 1623-4 another session of the assembly was. 
held, probably at the same place as before, James City.^ 
The first seven articles of their acts are largely concerned 
with the establishment of churches and the enforcement of 
religious observances. They show the close connection be- 
tween civil and religious affairs which then existed and 
which continued to survive until the revolution of 1776. 

One of the most important acts was the eighth, which 
forbade the governor to " lay any taxes or ympositions 
upon the colony their lands or commodities other way than 
by the authority of the General Assembly, to be leveyed and 
ymployed as the said Assembly shall appoint." Thus early, 
do we find the people's representatives demanding control 
of taxes and appropriations. 

In addition to taxation, another form of service to the 
government, that of personal service, was legislated upon. 
The governor was forbidden to draw off men from their 
private occupations to his own service, and in case the pub- 
lic service demanded the help of the inhabitants before the 
general assembly met, the levy could be made only by the 
governor and the whole body of the council. Even then 
there were limitations, for all planters in Virginia at the 
time of the last coming of Sir Thomas Gates (1611), and 
their posterity, were to be exempt from personal service in 
the wars, and such planters, (but not their families) were to 
be exempt from all personal dues to the government except 
those for the church. This seems to have been an attempt 
at legislative control of the militia, and to some extent of 
taxes. 

Provision was made that no burgess could " be arrested 

' Hening, i, 119; Brown, Firsi Republic, 458, 462. 
^Hening, 121-9; Chalmers, op. cit., i, 20-21. 



30 THE LEGISLATURE OF PROVINCE OF VIRGINIA [192 

during the time of the assembly, a week before and a week 
after," on penaUy of forfeiture of the debt by the creditor 
and such other penaky as the court might decide. This 
seems to have been a protection from individuals rather 
than from the government, the danger against which such a 
provision is most frequently aimed. 

Other acts of this assembly provided for inferior courts 
at Charles City and Elizabeth City, for settlement of boun- 
dary disputes, for levying taxes, for regulating the plant- 
ing, keeping and sale of corn, for preventing trade with the 
Indians and for arranging an attack on them in July. It 
was further declared that persons of quality when delin- 
quent in their duties, " being not fitt to undergoe corporal 
punishment " should be imprisoned and fined instead. 
Whatever rumors of changes in the government there 
might be, obedience to the then existing government was 
commanded. Mr. John Pountis was sent as a commissioner 
to the king and his council, thus beginning that system of 
colonial commissioners and agents which was to become so 
important in the i8th century. These acts are signed by 
the governor, seven councilors and twenty-four burgesses. 
The laws did not reach England in time to be ratified by 
the company, but most of them were re-enacted by later 
assemblies.^ 

In the meantime persons in England had made attacks on 
the company and on the Virginia colony. Two such attacks 
were published in pamphlet form, and were the " Petition " 
by Alderman Robert Johnson, former deputy treasurer, and 
the " Unmasking of Virginia " by Nathaniel Butler.- This 
hostility had caused the company and colonial officials to 
be very angry and the matter was referred to the assembly 
of 1623-4. The assembly made separate replies to the two 

'Brown, First Republic, S77 et seq. "^ Ibid., S77 et seq. 



193] '^^'^^ BEGINNING OF THE LEGISLATURE 31 

writings and sent them to the king/ In these replies the 
administration of Sir Thomas Smith was severely criti- 
cised and the existing administration praised. 

A few days after these replies were completed the privy 
council's commission was issued to Captain John Harvey, 
John Pory, Abraham Peirsey, and Samuel Matthews to 
inquire into the conditions in Virginia, especially as to the 
desirability of the surrender of the charter and the substi- 
tution of direct government by the crown." This act of the 
privy council was duly laid before the assembly for its con- 
sideration. The surrender of the charter was demanded. 
There was no provision in the proposal for any elective 
legislative body to take the place of the one established 
under the charter. This was a direct blow at the existence 
of a general assembly. It is quite probable that the English 
king, James I, would not have seen any need for an as- 
sembly. 

The assembly saw the necessity of defending itself, but 
instead of giving a reply to the commissioners, the bur- 
gesses decided to deal directly with the king and privy 
council. They asked that the governors sent over be given 
no absolute authority, but be restrained by the council. 
" But above all we humbly intreat your Lordships that we 
may retain the Libertie of our General Assemblie, than 
which nothing can more conduce to our satisfaction or the 
publique utilitie." ^ Although the letter to the privy council 
ignored the commissioners, Samuel Matthews, one of the 
commissioners, and a burgess, signed it. 

After waiting a week for a reply from the assembly, the 
commissioners addressed a note to the governor, and to 
the general assembly reminding it of the delay, and sub- 
mitting a form of acquiescence to the king's will, to be 
signed by the members. The general assembly (including 

•Brown, Firsl Republic, 570. "^Ibid., 57i-S84- ^Ibid., 573. 



32 THE LEGISLATURE OF PROVINCE OF VIRGINIA [194 

the governor and council), immediately replied that it had 
thanked the king for his care over the colony and had re- 
turned an answer to the privy council. It added that when 
consent to the surrender of the charter was required, it would 
be time to answer further/ It expressed the belief that 
the king's acts were influenced by " much misinformation." 
It then asked to know what further authority the com- 
missioners had. The commissioners explained to some ex- 
tent, but declined to state their full powers, only saying they 
would not attempt to wrong any man. That no ill feeling 
yet existed is seen by the fact that the assembly provided 
that the several plantations should transport the commis- 
sioners from place to place so that they might see the real 
conditions of the colony. Although the assembly sent its 
letters direct to the king and privy council, Pory, one of the 
commissioners, secured copies from the acting secretary, 
Edward Sharpless. For the offense of giving the copies, 
Sharpless was pilloried and lost a piece of one ear, though 
his sentence had been to have his ears nailed to the pillory 
and then to have them cut off.^ Thus closed the work of 
the last Virginia assembly under the authority of the com- 
pany. 

From the time Smith was superseded by Sandys, and a 
colonial legislature freely elected by the inhabitants was 
called, Virginia began to be a free community in a real 
sense of the word. True, the acts of the legislature to be 
valid must be ratified by the company; but the company 
was in sympathy with liberal government. It desired that 
the Virginians have a chance to govern themselves. If 
there could have been any certainty that the company would 
continue in the hands of such liberal men as Sandys and 
Southampton it would have been a misfortune for the colony 
to come under direct control of the crown. But such con- 
'Brown, First Republic, 573-4- "^Ibid., 583-4; Cooke, 153. 



195] THE BEGINNING OF THE LEGISLATURE 33 

tinuance being very uncertain, it seems probable that in 
the end it was better the change should come and come 
early. Doyle ^ says : 

The ambitious, enterprising, domineering temper of the Eng- 
lishman would not suffer him to remain the mere servant of 

a trading company As it was, the colony, happily 

for its future, passed under the control of the crown while it 
was yet plastic, undeveloped and insignificant. Neither its 
immediate resources nor any promise of political greatness in- 
vited attack till the day had passed when such an attack could 
be dangerous. During the interval the neglected community 
was silently maturing its resources, till the Virginia planter, 
with all his pride of birth and oligarchical temper, was fitted 
to play his appointed part in the great struggle for national 
freedom. 

In the fall of the company the assembly had no part, 
hence it is unnecessary to say more than that by the an- 
nulling of the charter, July 24, 1624, the hopes for the 
continuance of the legislature were turned from the acts 
and promises of the company to the uncertain and appar- 
ently unfavorable desires of the king. That there was 
ground for anxiety will be seen in the later events. The 
king's frequent interference with the legislature to a con- 
siderable extent nullified its powers for the time being. 
But we shall see that the good seed of self-government sown 
by the company in the grant of a legislature was not de- 
stroyed by such interferences from the king, and after each 
effort of his to limit its power the assembly soon regained 
its old position and continued to initiate laws for the free- 
dom of the colony. The place of the assembly, the gradual 
development of the organ of legislation, and the expansion 
of the power and influence of the legislature under the royal 
government from 1624 to 1776 will be the main themes of 
the succeeding chapters. 

^ Doyle, English Colonies in America, i, 183. 



CHAPTER II 

The House of Burgesses— Apportionment, Length 
OF Term, and Qualifications of Members 

In any discussion of the Virginia legislature the house 
of burgesses must have a leading place. It was the elective 
branch, the branch closest to the people and most intimately 
in touch with their interests. It was through their repre- 
sentatives in this house that the people took part in the gov- 
ernment. It was to this house that they sent their com.- 
plaints and their demands for redress of grievances. Because 
it was so important, the organization and development of the 
house of burgesses must be a part of any study of the legisla- 
ture of colonial Virginia. To give an account of the manner 
of choosing members and of the organization and procedure 
is the chief purpose of the next four chapters. However, 
after the fall of the company (1624) it seems that there were 
no sessions of the legislature for a few years. The govern- 
ment was conducted by the governor and council under in- 
structions from England. Therefore before going to the 
main discussion it is desirable that the attitude of the Eng- 
lish government toward a house of burgesses during this 
period be briefly stated, for it will help to explain the re- 
lations of crown and burgesses in the years following. 

When James had disposed of the company he appointed 
a special commission to plan a new form of government 
for Virginia, and in the meantime to govern and otherwise 
have complete control over the colony.^ No mention of a 

^ Story, Commentary on the Constitution of the U. S., i, 24. 
34 [196 



197] THE HOUSE OF BURGESSES 35 

legislature is made in connection with this commission. 
What would have been the real government of Virginia we 
cannot know, for James did not live long enough to work 
out his plans. However, we can draw the inference that, 
since James' ideas were not very liberal, it would not have 
given the legislature an important place. He might, as 
at the beginning in 1606, have kept all power in his own 
hands. According to Chalmers ^ two views were then held 
concerning the status of Virginia ; one that it was conquered 
territory which the king might govern by prerogative alone ; 
the other that it was a dominion of the crown and as such 
the parliament justly could claim supervision and power 
of legislation. James held the first of these views and 
thought the territory should descend to his heirs as a pri- 
vate estate.^ Of course a legislature was not consistent 
with this view. Another reason for believing the place 
of the assembly would have been unimportant is that Sir 
Thomas Smith, who had allied himself with the interests 
of the king, was made one of the commissioners. It is not 
at all probable that he would have favored the continuance of 
an institution which had criticised his government as severely 
as had the last assembly under the company.^ That the as- 
sembly feared Smith's influence, is shown by their petition 
to the king to continue the government as it had been and 
to keep them out of the hands of Sir Thomas Smith. ^ 
James' commissioners ° were to govern the colony until the 

^Chalmers, Geo., Hist, of Revolt of Am. Colonies, i, 29. 

^ Chalmers, Political Annals, 68. 

' Va. Mag. of Hist, and Biog., vii, 38-9. ''Ibid., 45-6, 129. 

*The command or commission of these men to plan a new govern- 
ment is given in Rymer's Foedera, xvii, 609-13. Extracts from it are 
found in the Va. Mag. of Hist., vii, 39-43, and in Sainsbury, Eng. Cat. 
of St. Pap. The commission to Yeardley, dated March 4, 1625, a few 
weeks before the death of James, said nothing of an assembly. See 
Rymer's Foedera, xviii, 311. 



36 THE LEGISLATURE OF PROVINCE OF VIRGINIA [jgg 

new plan was formulated and put into operation. The 
commission declared that the results in Virginia under the 
company would have been better if a less popular govern- 
ment had been adopted, and if the control had been in fewer 
hands. In 1625, shortly after the appointment of the com- 
mission, both the king and Sir Thomas Smith died, and 
whatever plans had been in contemplation came to naught. 

Though Charles I was said to hold the same ideas of 
government as his father, James I, and though he was 
autocratic in temper, the sequel shows that he was more 
inclined to give the colony fair treatment than was James. 
Nevertheless he declared his intention to bring the govern- 
ment of the colony into harmony with that elsewhere in the 
monarchy, and in May, 1625, he issued a new constitution.^ 
By this constitution two councils were to be appointed, one 
resident in England, the other in Virginia. All colonial 
officers were directly dependent on the crown. Even with 
a legislature this dependence of the officers would have pre- 
vented that legislative control over them which the assembly 
later exercised and finally fought to maintain. And, in- 
deed, there is no evidence to show that Charles at first meant 
to revive the assembly.^ There is some reason to believe 
that he was prejudiced against it. An instance to show 
this is his attitude in the case of Sharpless/ the clerk of the 
assembly, who had been punished for giving out to the privy 
council's commissioners copies of the assembly's address 
to the king. This event had occurred before the accession 
of Charles, but he took this action of the assembly as an 
offense to himself as well as to his father. Although 
Charles manifested no particular friendliness toward an as- 
sembly, he was not unfriendly to the colony, for Sir Francis 
Wyatt, a friend of liberal government, was continued as 

^ Doyle, i, 189. ^Chalmers, Pol. An7tals, 112-13. ^See page 32. 



199] ^^^ HOUSE OF BURGESSES 37 

governor under the new concessions until 1626, and was 
then succeeded by George Yeardley, a man of like views. 
That fact must have gone far to reconcile the colonists to 
the royal control. 

It was probably in 1629 that Captain Harvey in " Pro- 
positions Touching Virginia " asked the king to grant a 
new charter under the great seal " and therein to authorize 
3^e Lords to consider what is fitt to be done for ye ratefy- 
ing of ye privileges formerly granted, and holding of a gen- 
eral assembly, to be called by ye Governor upon necessary 
occasions, therein to propound laws and orders for the 
good government of ye people;" and because it is reason- 
able that the king's subjects should be governed only by 
laws approved by the king, the acts should be " propositions 
only," until ratified by the king under the great seal or by 
the privy council.^ The answer to this request was 
favorable.^ 

The wording of Harvey's petition would suggest the in- 
ference that up to 1629 Charles had made no provision for 
an assembly in Virginia. If this is a correct inference, and 
if Harvey's suggestions to the king were made in 1629, one 
session of the assembly would seem to have been held with- 
out the king's sanction, for a proclamation of the governor 
and council of April 30, 1628, concerning the planting of 
tobacco and corn, speaks of the " general assembly " as as- 
senting " upon full debate." ^ At that time the " old style " 

^Printed in Va. Mag. of Hist, and Biog., vii, 369-71. 

^ " . . . but the governor may be authorized shortly after his first coming 
into Virginia to call a grant assembly, and there to set down an estab- 
lishment of the Government, and ordaine lawes and order for the good 
thereof, and those to send hither to receive allowance, and such as shall 
be soe allowed to be returned thither under the greate scale and put in 
execucon, the same to be temporary & changeable at his mat'es 
pleasure signified under the like greate seale.'' Printed in Va. Maga- 
zine of Hist, and Biog., vii, 371. 
^Hening, op. cii., i, 130. 



38 THE LEGISLATURE OF PROVINCE OF VIRGINIA [200 

date was in use and the year began with March 25, instead 
of January i, which makes some confusion when dates in 
January, February and March, old style, are in discussion, 
for unless we know whether old or new style date is used 
we may mistake the year. But April was not one of the 
months the dates of which are doubtful, so April 30, 1628 
must have meant 1628. 

Again, a reply of the assembly to a letter from the king 
is dated March 26, 1628/ It was signed by Francis 
West as governor, five councilors, and thirty-one burgesses. 
West was succeeded by Dr. John Pott, March 15, 1628.^ 
Although the reply signed by West is dated after his term 
had expired, it is evident that the letter was prepared by an 
assembly held during his term as governor, and therefore 
that it must have been in 1627-8. From this it seems quite 
clear that a session was held in 1628 before the answer to 
Harvey's suggestion was given, and probably without 
authority from the king.^ 

There are no records of acts of the assembly of 1628 
other than those given above. Since they are so very few 
and yet there is evidence that an assembly was held, it fol- 
lows that the absence of records or of authority for calling 
an assembly fails to prove that none existed. Other un- 
recorded assemblies may have been held even before 1628.* 

' Henning, op. cit., i, 134. 

^Stanard, Colonial Register; Hening, op. cit., i, 4, says March 5th. 

^ Tyler, England in America, says it was called by direction of the 
king. 

* Story, op. cit., i, 24, says: " During the greater part of his (Charles 
I's) reign Virginia knew no other law than the will of the sovereign, or 
his delegated agent; and statutes were passed and taxes imposed without 
the sHghtest effort to convene a colonial assembly." He goes on to 
say that it was not until open resistance and demands for redress of 
grievances were made by the colonists that the king yielded. Then he 
sent out Sir William Berkeley as governor with authority to issue writs 



20l] THE HOUSE OF BURGESSES 3^ 

Howison says that such sessions were regularly held.^ The 
king's commissioners, probably in 163 1, recommended that 
the planters in general assembly have a part in making 
laws." The legislature of 1642 gave the prevalence of 
assemblies under the government of Charles as a reason for 
opposing the revival of the company.^ It seems fair to con- 
clude, then, that there could have been no very long period 
in Charles' reign without an assembly. The assemblies 
gradually began to meet regularly, and naturally came to 
exercise a larger and larger part in the government of Vir- 
ginia. 

Thus far, as was indicated earlier, an attempt has been 
made to show the place which the legislature had as a whole 
in the government of Virginia during the last months of 
James' and the early years of Charles' reign. Let us now 
proceed to a study of the main topic of the chapter, the 
house of burgesses as a part of the legislature. 

As was the case in the assemblies under the com|)any, the 
membership of the legislature, under royal control, included 
the governor, councilors, and burgesses, and for a long 

for the election of delegates to the assembly. This is certainly wrong, 
for Berkeley was not sent out till 1642, and Hening, Statutes at Large, 
i, gives the proceedings of the general assembly for the years 1629, 1630, 
1632 (two sessions), 1633, 1640 and 1642, This certainly disproves 
Story's statement, as no one would care to perpetrate a fraud of such 
character as to create these records. Mr. Stanard in Va. Mag. of 
Hist., X, 263, shows by Governor Harvey's letters and other sources 
that the evidence of annual assemblies from 1629 to 1640 is tolerably 
conclusive. 

' It is true we have no record of general assembly proceedings from 
1624 to 1629; "but we have reason to believe that during that time it 
had regular sessions, and we find the provincial council often relying 
upon and enforcing its enactments by their own executive power." 
Howison, 259. Howison does not say upon what authority he bases 
his statement. 

^ Va. Mag. of Hist., vii, 38. ^ Hening, op. cit., i, 231. 



,40 THE LEGISLATURE OF PROVINCE OF VIRGINIA [202 

time they all sat and voted together as one house. In fact 
it was not until about 1680 that the assembly permanently 
separated into two houses, the burgesses forming the 
: lower, and the governor and council composing the upper 
I' house. It follows, therefore, that in some instances what 
'■ is said in this chapter concerning the burgesses might be 
said as well of the early colonial assembly as a whole. But 
while this is true, this chapter refers to the burgesses only. 
The governor and the councilors as members of the as- 
sembly will be discussed in separate chapters. 

Since even from the first the body of burgesses was spoken 
of as "the House of Burgesses," as though it was an organ- 
ization separate from the rest of the assembly, and because at 
a later time there were two distinct houses, some method of 
designation is necessary. Usually they will be referred to 
as burgesses and council, or lower and upper houses; but 
it is sometimes desirable to refer to the burgesses as the 
house. The council will never be spoken of as the house, 
though in its own records of the session of May, 1742, it 
referred to itself as "the house." This use was excep- 
tional, however, and common usage of the present as well 
as of that time, will be followed by applying the term 
" house " to the house of burgesses only. 

It has already been stated that the number of burgesses 
elected to the assembly of 1619 was twenty-two, but that only 
twenty were allowed to retain their seats. In the assembly 
of 1623-4 there were twenty-four burgesses. From this time 
on the number varies with the changes made in the appor- 
tionment to each plantation and with the number of planta- 
tions or districts. For example, in 1629, twenty-three 
localities elected forty-six burgesses, and no burgesses ap- 
peared for the East Shore; in March, 1630, forty-five mem- 
bers representing twenty-three towns and plantations ap- 
peared, and no burgesses for Westover came. Before the 



203] THE HOUSE OF BURGESSES 4 1 

following year these twenty-three plantations were con- 
solidated, so that only thirteen districts were represented by 
twenty burgesses/ Again, in 1632, twenty-live districts 
were represented by forty burgesses.^ 

As early as 1618 the governor and council had received 
instructions from the company to divide the colony into 
counties/ but it is not probable that they did so, for the ? 
records show no acts on the subject before 1634. In that ; 
year was passed an act dividing the country into eight 
shires, each to have a sheriff and lieutenant and to be gov- 
erned like the shires in England/ This act seems to have 
been the first real attempt in the colony itself to establish 
counties/ By 1642-3 ten counties had been organized, the 
names of which were in several instances different from 
those given above/ Some of the names were changed at 
this same session/ In this year an act was passed calling 
the monthly courts " county courts." ^ County representa- 
tion seems to have been adopted for the first time in 1642. 
But instead of there being two burgesses from each terri- 
torial area as before, a different plan seems now to have 
been used ; but whether the new basis was one of wealth, of 
population, or of size of territory is not known. The bur- 
gesses were apportioned as follows : James City county had 
six ; Henrico, Charles City, and York counties had three 

^Hening, op. cit., i, 147, 154, 178; Channing, J. H. U. S., ii, 475; 
Cooke, 202. 

^Ibid., i, 178. ^Channing, 475. 

*Hening, i, 224; Channing, 476, These shires were "James City, 
Henrico, Charles City, Elizabeth Citty, Warwick River, Warrosquy- 
oake, Charles River and Accawmack." 

*It is true that several provisions for monthly courts had been made 
before this time, but in some cases at least it was provided that they 
should be held in certain corporations named, but not in counties. 
Hen., i, 125, 133, 163, 168. 

^Hening, op. cit., i, 239. ''Ibid., 238, 249. ^Ibid., 2y2i- 



42 THE LEGISLATURE OF PROVINCE OF VIRGINIA [204 

each ; the remaining six counties, two each. We know the 
most populous counties had the larger representations and 
so, as Ingle thinks, the apportionment may have been on a 
basis of population/ However, this supposition is made 
doubtful by the words of the assembly of November, 1645, 
which declare that before that session the number of bur- 
gesses had been increased or decreased " without any cer- 
tain rule for the same." This was stated in the first act, 
which then provided that in all ensuing assem.blies no 
county, save James City, was to have in excess of four 
representatives. James City county was to elect five for 
the county and one for the city. This rule continued in 
force during several assemblies, though few of the counties 
elected four members.^ At the session of 1645, there was 
a member present for the county of Northumberland, though 
that county does not appear to have been organized and au- 
thorized to select burgesses until three years later. ^ A pro- 
position to reduce the number of burgesses to two for 
each county failed of passage in 1658, but with certain 
modifications it was carried in 1661.* These modifications 
were first, that James City, being the metropolis, should have 
the privilege of electing one burgess for itself ; and second, 
that every county which should lay out one hundred acres 

1 Ingle, J. H. U. S., iii, 181. 

^Hening, i, 298-299, Z'^^^.-Z, 339-40, etc. Hildreth, i, 339; Foote, 12. 

^ Hening, op. cit., i, 352. This county was first mentioned in Act IX, 
1644-5, but not definitely. It was represented in the next assembly, 
and hence Hening, i, 299, note, thinks it was formed by the governor 
and the council in the interim. Act I, 1648 (Hen., i, 352-3) does not 
give that impression, for after speaking of the tract of land it says, 
" that the said tract of land be hereafter called and knowne by the name 
of the County of Northumberland, and from henceforth they have 
power of electing Burgesses for the said county .... which they are 
authorized to do by virtue of this act to the next sessions of this as- 
sembly." 

''Ibid., i, 498; ii, 20. 



205] THE HOUSE OF BURGESSES 43 

of land and people it with one hundred tithable persons 
should have the same privilege/ For the session of Sep- 
tember, 1663, the list of members shows that three counties, 
James City, Charles City, and Isle of Wight, had three 
members each. James City county was entitled to three by 
the act of 1661, but whether in the cases of the last two 
mentioned the three representatives were a violation of the 
act of March, 166 1-2, or were due to these counties having 
planted one hundred tithables on one hundred acres of land, 
is not known." The session of June, 1666, shows but one 
member for several of the counties ; only Isle of Wight has 
three; the others have two. During the session of Octo- 
ber, 1666, Isle of Wight county proposed to dismiss its 
extra member, but the assembly refused to permit the dis- 
missal, because no burgess was admitted "without legal and 
deliberate examination of his return," and the house, hav- 
ing so examined and passed upon his returns, was in honor 
bound to allow him to hold his seat during that assembly.^ 
The presence of but one member from several of the counties 
seems to have had legislative sanction, for by Act VII, of the 
October session, 1669, it was provided that, because several 
inconveniences had arisen from the act giving liberty to the 
counties to choose one or two burgesses at discretion, there- 
fore it was ordered that each county should thereafter send 
two burgesses.* The inconveniences were that the require- 
ments of committee service, absence from sickness and other 
causes, frequently deprived counties having only one mem- 
ber of any representation in the house when important mat- 
ters were before it. Hening gives no act permitting one 
member, unless the law of 1661, reducing representatives 
to two for each county, be taken to mean not more than two, 

^Hening, op. cit., ii, 20; Statutes of 1661, 50. ^Ibid., ii, 196, note. 
^Ibid., ii, 253. *■ Ibid., ii, 272-3. 



44 THE LEGISLATURE OF PROVINCE OF VIRGINIA [206 

with only one if desired by the county; yet, evidently the 
assembly of 1669 thought that there was such authority and 
repealed the act providing for it. In the year 1670 it was 
enacted that any county which failed to send two burgesses 
should be fined 10,000 pounds of tobacco/ A year later it 
was again declared that each county should have two bur- 
gesses, and according to the letter of Governor Berkeley to 
the home government, each county had the required num- 
ber.^ Throughout the rest of the colonial period the law 
provided for two burgesses from each county, and one from 
each of such corporations as had secured charters granting 
that privilege. At various times Willamsburg, William 
and Mary College, and Norfolk were given such charters.^ 
Jamestown had the privilege as early as 1661, but after the 
removal of the capital Jamestown became a " rotten 
borough " in that it came entirely into the control of two 
families who owned most of the island.^ In the conven- 
tion of 1775 the College was not allowed a representative. 
By May, 1776, the delegates had reached the number of 
one hundred and thirty. From this it is evident that the 
number of counties had greatly increased. 

Some writers have thought that in addition to county and 
corporation representation that there was a limited parish 
representation. Ingle says that for some years parishes 
as parishes, were allowed to elect burgesses, but later, be- 
cause of the expense, they could send members only when 
they had measures to advance. The evidence to support 

' Hening, op. cit., ii, 282; Hildreth, op. cit., 1, 525. 

^Hening, ii, 512. The letter was written 1671. 

^Jamestown was given the right to elect a burgess in 1661, Williams- 
burg in 1742, Norfolk in 1736, and the College in 1705. Beverley, book 
iv, 6-7, printed in 1705, says the college was then entitled to represen- 
tation. With the exception of 1762 and 1769, all four boroughs are not 
mentioned in the list of burgesses at any one time. 

*Stanard, Va. Col. Reg., 9. 



207] THE HOUSE OF BURGESSES ^c 

this statement is not absolutely conclusive, but such as it is, 
is as follows. From the first formation of counties in 
1634 it seems that the assembly had the formation of new j? 
counties and parishes and the determination of boundaries \ 
completely under its control. Since representative districts \ 
coincided with these local divisions, the assembly also had 
control of those districts. In a few instances at least the 
representative district was designated as the parish. For 
example, the assembly of 1643 fixed the boundaries of Lyn- 
haven parish and further provided that the people thereof 
should have free liberty to choose burgesses for that parish.^ 
This is the first case of parish representation provided for 
in the statutes, thoug'h there were similar cases afterward. 
Even in this instance it is not certain that the parish alone, 
as such, chose burgesses, unless the parish and county were 
co-extensive. At first many parishes were co-extensive 
with hundreds and counties, and thus they may have been 
said to send representatives to the assembly. By act LXII 
of the session of 1643, ^he assembly ordered " Burgesses 
for the several parishes " in the upper Norfolk county to be 
chosen within the Hmits of said parishes. That county 
had three parishes but at several of the following sessions 
had but two burgesses. Occasionally three burgesses ap- 
pear, but not regularly. Either the parishes did not use 
the liberty given them or the act referred to something else, 
as possibly that the parishes were to be election precincts 
instead of representative units. This interpretation seems 
hardly plausible however. Moreover in 1658 the assembly 
ordered sheriffs to hold elections for parochial burgesses 
when requested to do so by the vestry." As at that date 
Isle of Wight county had four burgesses, they were prob- 

' Hening, op. cit., i, 250. 

"^ Ibid., i, 545. John Hammond, burgess for the lower parish of Isle 
of Wight county, was expelled Nov. 1652, Hen. i, 374. 



46 THE LEGISLATURE OF PROVINCE OF VIRGINIA [208 

ably representatives of parishes.^ These cases seem to bear 
out Ingle's statement. 

The length of term for which members were elected was 
irregular and uncertain. At first it is probable that they 
were elected to serve during the session only. At times the 
assemblies for various reasons, and usually in violation of 
law, held over from session to session, because the proper 
officials did not care to order another election. This is 
notably the case from the restoration to Bacon's rebellion, 
to be referred to later. 

Under the London Company, as has already been seen, 
the term appeared to be limited, in practice at least, to a 
single session. The constitution of 1621 directed the as- 
sembly to be called " once yearly, and no oftener, but for 
extraordinary and important occasions." ^ These instruc- 
tions probably were not obeyed after the fall of the com- 
pany. After 1624 there are no records of meetings be- 
fore 1628, and then only the barest reference to a session. 
The instructions sent by Charles I to Governor Berkele)^ in 
1642, ordered the calling of assemblies " as formerly once 
a year or oftener." ^ Not before 1647 is there found any 
record which points to a legislature having existed for more 
than a year after its election. In that case the evidence is 
not wholly conclusive. * Whatever may have been the fact 

^ Va. Mag. of Hist., viii, 393, as reprinted from Edmund Randolph 
manuscript. 

^Hening, i, 512, 

^ Va. Mag. of Hist., ii, 281-88. 

* Briefly stated, the evidence is as follows: the assembly met, No- 
vember 3, 1647, and when they had considered, but not wholly settled, 
some questions of "Create and weightie consequence," it was found 
inconvenient for the members to stay from home at that time of 
year, and they adjourned to October i, 1648. (Hen., i, 341.) The 
next session did not begin until October 12, 1648. The burgesses must 
have been elected as early as October, 1647, for they began the first 



209] ^^^ HOUSE OF BURGESSES 47 

in that instance, it is certain that not long after a case of 
such extension did occur. In March, 1655, an assembly \ 
met, did business, and adjourned till March 10, 1656. That 
session was prorogued to the following December. This 
session was held, having begun December i, 1656. Here 
is a clear case of violation of the principle of annual elec- 
tion. The importance of the event rests in the question, 
was it a conscious effort on the part of the authorities to de- 
prive the people of annual elections? With the example 
of the English long parliament before them, such an at- 
tempt would not be unnatural. 

In March, 1659, an act was passed providing that a new 
assembly should begin March 10 of every second year. Was 
this law making a longer term a new departure or did it give 
legal sanction of what had already existed in practice?'- 
The case in 1656 makes the latter the more probable assump- 
tion. When the assembly elected Berkeley as governor the 
next year, it declared that the burgesses were to be called to- 
gether every two years or oftener, though we know that 
during much of the reign of Charles II elections were not 
held so often. After Bacon's rebellion Charles II con- 
firmed this law in the instructions issued to the governor, 
directing him to call the assembly only once in two years 
instead of annually (except in an emergency), and to limit 
the session to fourteen days unless he (the governor) found 
good cause to extend the time." 

session November 3. The next session beginning October 12, 1648, 
the actual existence of this assembly must have continued near to, if 
not in excess of, a year. It is certain that at the second session the 
assembly adjourned to meet February 10, 1648-9, clearly several months 
over the year. (Hen., i, 357.) Hening gives no record of the Feb- 
ruary session, and it is possible a meeting was not held. 

^Hening, i, 517; Hildreth, op. cit., i, 366. 

* Hening, op. cit., ii, 424; Ancient Virginia Records (MSS.) Lib. of 



48 THE LEGISLATURE OF PROVINCE OF VIRGINIA [210^ 

Before 1660 few assemblies were continued beyond the 
legal time, though there was one considerable interval (1624- 
1628) in which it is possible that no session at all was held. 
After 1660, almost the whole period until Bacon's rebellion 
was occupied by different sessions of the same assembly. In 
1662 the laws were revised. All those omitted from the 
revised list were declared repealed. Among those omitted 
was the one requiring biennial elections of burgesses. 
Bancroft ^ considers that this act was thus repealed by the 
assembly, but Howison ^ thinks there is reason to believe 
that such was not the intention. He says elections were 
held up to 1666, but that the same assembly with the same 
members held office from 1666 to 1676.^ 

By 1700 the custom of proroguing assemblies from ses- 
sion to session had become very common. The records 
show from one to seven sessions held by one assembly with- 
out renewal by election. However, Beverley (1705) says 
that the time of meeting of the assembly had been either 
once a year or once in every two years ; " and seldom two 
entire years passed without an assembly." * In 1762 the 
burgesses declared frequent new assemblies more satisfac- 
tory to the people, and petitioned the king to allow them one 
new assembly every three years at least. ^ During the same 

Cong., typewritten copy in Va. Hist. Soc. Lib., 99. The reference in 
the instructions to annual sessions was not in accord with the practice 
of the years immediately preceding. This discrepancy may have been 
due to the fact that instructions given at an earlier date provided for 
annual sessions, and in making out new instructions they simply 
amended the old ones without reference to the then existing practice. 
^Bancroft, ii, 205. ^Howison, 326-7. 

* Hamilton, Federalist, 332, says that under the colonial govern- 
ments elections were "septennial." This is true of the present Eng- 
lish House of Commons, unless sooner dissolved, but certainly was not 
true in Virginia in the early period. 

* Beverley, book iv, 8. ^Hening, op. cit., vii, 518. 



21 1 ] THE HOUSE OF BURGESSES ^g 

session, however, it was enacted that no assembly should 
continue longer than seven years/ and that the assembly 
then in existence, unless sooner dissolved by the governor, 
should legally expire May 26, 1768, five and a half years 
after the passage of the act. In reality none ever existed 
seven years. 

The qualifications required for membership in the assem- 
bly are not usually stated in very direct terms ; yet there is 
much that can be inferred from what is found in the re- 
cords. Many of the references are negative in form, stating 
who might not be burgesses instead of who might be such ; 
but it is fair to infer that those who did not have the specified 
disqualifications were therefore qualified. Foote says that 
qualifications for office were not established until necessity 
compelled it to be done." This may be the reason that the 
qualifications for office were more definitely stated in the 
eighteenth century than in the seventeenth. 

The laws of the seventeenth century show few require- 
ments in regard to residence of members. However, it 
would have been natural for the people to select mem- 
bers who were residents of the districts that chose them. 
The references in the laws are not to place but to time of 
residence. They are in reality denizenation or naturaliza- 
tion acts. While it is certain that aliens who had not gone 
through some process of becoming citizens could not hold 
office, it is not certain that all who became denizens were 
made capable of holding office. It is possible some were 
merely admitted to suffrage but not qualified to hold office. 
The acts are not clear on that point. That the assembly 
made a difference between commissions of denizenation and 
commissions of naturalization, is clear from the record in 

^ Hening, op. cit., vii, 530. 

* Foote, Sketches of Virginia, 13. 



20 THE LEGISLATURE OF PROVINCE OF VIRGINIA [212 

Hening ^ where Dutchmen were made denizens and Eng- 
lishmen were naturalized.^ Yet the presumption is that 
" free denizens " and naturalized persons were qualified to 
hold office; therefore the time of residence required for 
denizenation or naturalization may be a possible qualifica- 
tion for office. 

Some of the acts for denizenation and naturalization are 
as follows: In 1658 a law provided that aliens and stran- 
gers might become free denizens when, after four years' 
residence, they should have taken an oath of fidelity to the 
government. Several Hollanders were thus made free 
denizens.^ Later, Nicholas Boate, (probably of English 
descent), "when he and his family should have resided in 
Virginia tzvo years and should continue to reside there " 
was to receive all the rights of an Englishman.^ Bacon's 
assembly (1676) declared that only natives of Virginia, 
ministers, or persons having resided in Virginia three years 
could hold office.^ This law was re-enacted the follow- 
ing year.'' Other references to naturalization are similar 
in import. These references show that foreigners after a 
term of residence, varying at difi^erent times, could become 
citizens, and after that time they might be eligible to the 
office of burgess. 

The qualifications became a little more definite in the 
eighteenth century. In 1705 the fifth general revision of 
the laws was made. Of the old laws only those reenacted 
were to continue in force. By the revision act all office 
holders must be natives of the colony, have been commis- 
sioned by the crown, or have resided in Virginia three 

' Hening, op. cit., i, 499. 

^ Va. Mag. of Hist., viii, 393-4, reprinting Randolph MSS. indicates 
that only those of English descent could become naturalized to the ex- 
tent of holding ofSce. 

^Hening, op. cit., i, 486, 499. ^Ibid., ii, 16. 

^Ibid., ii, 354. ^Ibid., ii, 390. 



213] ^^^ HOUSE OF BURGESSES ^I 

years. ^ This rule seems to have held until the adoption 
of the constitution of 1776. 

Residence in the county from which elected was probably 
not compulsory, for Patrick Henry was chosen from 
Louisa County in 1765, though he was not then a resident 
of that county. 

The minimum age requirement was that members must 
be twenty-one years old. This was so stated by the as- 
sembly as early as March, 1655,^ ^^^ re-affirmed a year 
later ;^ again also in 1699, 1705 and 1762.* Foote states 
this to have been the usual requirement.^ 

Contrary to the present system, more stress seems to have 
been placed on the character of the individual than on the 
age, for many references to character as a qualification are 
found. The earlier references are to individual cases, one 
or two of which will show the attitude of the assembly. In 
1652 John Hammond, from the lower parish of Isle of 
Wight county, was expelled from the house of, burgesses 
because he was " notoriously knowne a scandalous person 
and a frequent disturber of the peace of the country by 
libel and other illegal practices." ^ At the same session 
James Pyland, from the upper parish of the same county, 
was expelled as " an abettor of Mr. Thomas Woodward in 
his mutinous and rebellious declaration, and concerning 
his, the said Mr. Pyland, blasphemous chatechisme." '' 

The assembly of 1655 endorsed the principle involved 
in these cases by enacting that a burgess " shall be such and 
no other than such as are persons of knowne integrity and 
of good conversation."® This was reaffirmed in 1658. The 

1 Hening, op. cit., iii, 251-2; Spotswood Papers, ii, 60. 

■■'Hening, op. cit., i, 412. "^ Ibid., i, 475. 

^Ibid., iii, 174-5, 243-4; vii, 519. ^ Foote, 13. 

■^Hening, i, 374; Cooke, 202. ' Hening, i, 374-5; Cooke, 203. 

®Hening, i, 412. 



^2 THE LEGISLATURE OF PROVINCE OF VIRGINIA [214 

same year it was enacted that persons guilty of " the odious 
sinnes of drunkennesse, blasphemous swearing and cursing, 
scandalous living in adultery and ffornication " were to be 
held incapable of being witnesses or of holding any public 
office ; in addition to this those who were proven guilty were 
subject to a fine/ Bribers were disqualified, even if the bribe 
were only promised but not delivered.^ By the law of 1705 
any one who had been convicted of treason, murder, felony, 
blasphemy, perjury, forgery, or of any crime, which under the 
laws of England or other country where he had been con- 
victed, was punishable by loss of life or member, was dis- 
qualified to hold office civil, religious, or military, unless 
previously pardoned. If any such person was discovered 
in office and convicted he was made to forfeit 500 pounds 
current money and 20 pounds like money for every month 
he continued in office after his conviction.^ 

That these laws were enforced is evident from numer- 
ous cases in which the burgesses expelled or otherwise pun- 
ished persons of bad reputation who had been chosen to 
membership in the house. They were punished, however, 
only after investigation proved the charges.* 

The year following Bacon's rebellion those who had been 
prominently engaged in that uprising were made incapable 
of holding any office except that of constable or surveyor of 
highways. If, however, the person had returned to duty 
and helped to suppress the rebellion, the disability did not 

'Hening, op. cit., i, 433. 

'■Ibid., iii, 242; vii, 526; ix, 57; Archceologia Americana, Series 4, 
vol. iii, 422. 

^Hening, iii, 250-1. Also ibid., ii, 390. 

* These cases will be referred to later in connection with the punish- 
ment of members, election contests, and judging the election and qual- 
ifications of members. Hence further discussion is unnecessary at this 
point. 



215] ^^^ HOUSE OF BURGESSES 53 

apply/ Many of the foregoing disabilities are general for 
all officers, but as burgesses were considered as officers, the 
disqualifications applied to them as well. 

Bruce ^ says that a considerable number of those who 
became members of the house of burgesses, and of the 
council, had been indented servants when they had first 
come to the colony. But when they had served their time 
and secured the land grant allowed them, they had imme- 
diately become active in affairs and by superior ability had 
made themselves important factors in the colony. Some 
of these had been of good family in England and had 
chosen to indenture themselves as servants and apprentices 
in order to get a good start in Virginia. In the early years 
of the colony such apprenticeship was not uncommon. 

In the early years of the assemibly many of the burgesses 
were men of small estates, but as the colony became more 
thickly populated and men of large properties became more 
numerous, most of the officers, burgesses included, were 
chosen from the wealthier planters and merchants.^ It is 
true that in 171 1, Governor Spotsword said the assembly 
was composed of " men of narrow fortunes and mean un- 
derstandings." Of the assembly of 1713-14, he said, the 
burgesses are " persons of the meanest capacities and most 
indifferent circumstances, and whose chief recommendation 
to the Post is their declared resolution to raise no taxes upon 
the People for any occasion whatever." Again in 1723, 
he noticed a tendency toward " excluding the gentlemen 
from being burgesses, and choosing only persons of mean 
figure and character." He said the same mean spirit was 

'Hening, op. cit., ii, 383-4- 

"Bruce, Economic Hist, of Va., ii, 44-6; Ballagh, White Servitude 
dn Va. {J. H. U. S.), 82-3. 
'Bruce, ii, 378. 



^4 THE LEGISLATURE OF PROVINCE OF VIRGINIA [216 

shown by the burgesses expehing two members " for hav- 
ing the generosity to serve without pay," on the plea that 
they were bribers/ It is possible that for a time the less 
prosperous settlers had control of the legislature; but as the 
assemblies to which Spotswood referred, had ignored his 
recommendations, it may be that he was prejudiced against 
the members and understated their wealth and ability.^ At 
any rate, the general statement that the men of wealth and 
station held most of the positions, is upheld by Colonel Rob- 
ert Quary, a man who at various times held office in most 
of the colonies from New York to South Carolina, who by 
virtue of his office as surveyor general of the customs, was 
a member of the council in five colonies at one time,® and 
who was a kind of agent of the home government. In a 
letter to the Lords of Trade in June, 1703, he said "Her 
Majesty's Council, the Assembly, the Justices and Officers 
of the Government," are chosen out of the large land 
owners.* These land owners were frequently in debt and 
for some years it was customary for them to borrow large 
sums from the colony treasurer. By 1769 the debts to the 
treasury were very large, and the influence of the large 
land holders was so great that Ripley says they were al- 
most able to transfer their debts to the public loan office.^ 

^Hildreth, op. cit., ii, 326; Bancroft, op. cit., ii, 20. 

* Ripley, op. cit., 33-4. 

'New York, New Jersey, Pennsylvania, Maryland and Virginia. 

*" But in every river of this province there are men in number from 
ten to thirty, who by trade and industry have gotten very competent 
estates. These gentlemen take care to supply the poorer sort with 
goods and necessaries, and are sure to keep them always in their debt, 
and consequently dependent on them. Out of this number are chosen 
Her Majesty's Council, the Assembly, the Justices and Officers of the 
Government." See the letter in the N. Y. Col. Docs., iv, 1051; Hildreth, 
ii, 234 also refers to it. 

* Ripley, op. cit., 43. 



217] ^^^ HOUSE OF BURGESSES ^e 

Although there is so much made of character and prop- 
erty as quahfications, character and property alone were 
not sufificient; for such persons as negroes, mulattoes, In- 
dians and females, even though freeholders, were debarred.^ 

In a time of state churches and general religious in- 
tolerance we should expect a religious qualification for bur- 
gesses to be prominent ; and so we find it. Beginning with 
1 6 19 it was the custom at the opening of each session to 
administer the oath of supremacy to both burgesses and 
councilors. Save during the commonwealth period, this 
was probably never omitted. This oath in reality required 
the members to recognize the established church of Eng- 
land." In 1643, certainly, and probably as early as 1641, 
Catholics were prohibited from holding any office. If a 
Catholic secured office and refused to take the oaths of 
allegiance and supremacy the assembly could try him and 
upon conviction dismiss him from the office.^ The same 
assembly directed the governor and council to compel all 
non-conformists to leave the country; so they too must 
have been ineligible to membership in the house.* The 
assembly of 1659-60 passed a very severe act compelling 
Quakers to leave the colony. After that, if they returned 
they were considered felons.^ Although they were not ex- 
cluded from the colony at all times, it is not likely that they 
were at any time admitted to the assembly, as the oaths re- 
quired would not have been taken by Quakers. Even a 
friendly attitude toward Quakers aroused suspicion. In 

' Hening, op. cit., iii, 251. 

"^Ibid., i, 139, 149 <?2f seq. The members were also required to take 
the oath of allegiance and a special oath of office. For the oath see 
Hening, i, 378; ii, 206. Case of dismissal for refusal to take oaths, 
Journal of Burgesses, 1793, 4-S- 

^Hening, op. cit., i, 268-9. 

^Ibid., i, 2T7, 241-2. ^Ibid., i, 532-3- 



^6 THE LEGISLATURE OF PROVINCE OF VIRGINIA [218 

1663 John Porter, a burgess, was accused by John Hill, high 
sheriff of Lower Norfolk, of being "well affected" toward the 
Quakers and of attending their meetings ; he was charged 
with being so far an Anabaptist as to disbelieve in bap- 
tising children. Porter admitted being well affected to- 
ward the Quakers, but said it could not be proved that he 
had been at their meetings. The oaths of allegiance and 
supremacy were tendered to him, but he refused to take 
them, and was dismissed from the house. ^ An act against 
the Quakers was passed at the same session.^ Charles II 
did not sympathize with the feeling against the Quakers and 
directed Berkeley to be lenient and not to molest them.^ 

In 1699 it was enacted that any person denying the 
existence of God or of the Trinity, or asserting that there 
are more gods than one, or denying the Christian religion 
to be true, or the scriptures to be of divine authority, should 
be disqualified to hold any office, civil or military. How- 
ever, the accused person might have the penalty removed by 
renouncing his opinions within six months.* Six years 
later the law was reaffirmed.^ 

In 1653 ministers were forbidden to sit as burgesses 
and the act declared, " It is unpresidential (unprecedented) 
and may produce bad consequences." ^ 

As a rule a burgess could not hold any other office dur- 
ing his term as burgess. This was especially true in the 
later colonial period. A few instances will illustrate the 

^ Hening, ii, 198; Cooke, op. cit., 221; Howison, op. cit., 320; Weeks, 
Southern Quakers and Slavery, J. H. U. S., extra vol, xiv, p. 23; 
Randolph MSS., iii, 282 (Va. Hist. Soc. Lib.). 

^Hening, op. cit., ii, 180. 

*Neill, Virginia Carolorum, 293. * Hening, iii, 169. 

^Hening, op. cit., 358-9. 

^Ibid., i, 378. Ministers are not mentioned again till 1775 when they 
were excluded from the House of Delegates. 



219] THE HOUSE OF BURGESSES c^y 

custom in this matter. In 1685 Robert Beverley forfeited 
his seat as burgess by being chosen clerk of the burgesses/ 
Tobacco inspectors were not only excluded from the house 
but were not even allowed to take any part in the election 
of members, or even be present at the polls." Finally, in 
1742 and 1748 a tobacco inspector could not become a bur- 
gess until two years after vacating the office.^ Sheriffs or 
others holding places of profit in the government were not 
eligible to the place of burgess, and burgesses were exempt 
from being compelled to serve as sheriffs.* By the act 
of 1762 burgesses were prohibited from holding any other 
office of profit, and the acts regarding sheriffs and tobacco 
inspectors were reaffirmed.^ September, 1744, the bur- 
gesses called for new elections to fill the places of persons 
who had accepted office of surveyor, clerk of court, naval 
officer and councilor.'' The duties of treasurer, however, 
were not held to be inconsistent with those of a burgess, 
for John Robinson was not only burgess and treasurer for 
a long time, but in addition from 1738 to 1766 he was bur- 
gess, treasurer and speaker.'' Other offices, the acceptance 
of which caused a burgess to lose his seat, were those of 
coroner,^ collector,^ clerk of the council,^" and deputy at- 

^ Journal of Council as Upper House, 1685, 7. 

'Hening, iv, 481-2. This was in 1736. ^Ibid., v, 153; vi, 185. 

*-Ibid., iv, 292; V, 516; vii, 529; Jour, of Upper House, May, 1730, 
14 etc. In 1684 a sheriff of Northampton was elected burgess, but was 
not allowed to take his seat. Va. Mag. Hist., x, 237. 

^Hening, vii, 529; viii, 95. 

«7b«r. of Burg., Sep., 1744, 3; Feb., 1754, 5; Oct., 1754, 4; April, 
1757. 5- Stanard, Va. Col. Register, 9-10, says that when a burgess 
vacated his seat by accepting an office, he was always eligible for re- 
election except when he became sheriff or coroner. 

' Va. Mag. of Hist., ix, 355. 

^Jour. of Burg., Nov., 1753, 3o; Oct., 1754. 1Z\ Oct., 1764, 99, etc. 

^ Ibid., May, 1740, 3- ^'^Ibid., July, 1771. 2-3. 



^8 THE LEGISLATURE OF PROVINCE OF VIRGINIA [220 

torney of the county court/ A councilor while under dis- 
placement or suspension could not become a burgess. 

The convention of 1775 extended the prohibition of office 
holding by burgesses so that any person then or thereafter 
appointed sheriff, mayor, or clerk of any county or cor- 
poration, or collector of any taxes, duties, or levies imposed 
by the convention, or appointed to any military office, 
thereafter established, except those in the minute-men, was 
not capable of sitting in the convention, and in case such dis- 
qualified persons were chosen new elections should be or- 
dered. This convention being revolutionary, any one hold- 
ing office under the crown was held ineligible to member- 
ship. 

A property qualification does not appear in the records 
until the beginning of the eighteenth century, but it is very 
probable that it was a real qualification much earlier. The 
report of Ouary (1703) stated that the members of both 
houses were men of large estates. In 1705 it was enacted 
that burgesses must be freeholders in the county from which 
they were chosen.- An act of 1769 was similar except that 
it said the member must be a voting freeholder. An act of 
1744 required the candidate to have had a freehold for one 
year at least, just before election." We find some instances 
in which persons were excluded because they did not have 
a sufficiently large freehold. In one case the sitting mem- 
ber was shown to have rights in 200 acres and therefore 
was declared entitled to his seat.'* 

The charter of Norfolk, 1736, provided that their bur- 
gess should have a freehold or visible estate in the borough 
to the value of £ 200 sterling if he resided in the borough, 
or £ 500 sterling, if he resided outside. 

^ Jour, of Burg., July, 1771, 2-3. ' Hening, iii, 24^-4. 

^Jour. of Burg., 1744, 12. 

*■ Ibid., Oct., 1748, 14; Nov., 1753, 74. 



CHAPTER III 

The House of Burgesses — Suffrage, Elections, and 
Election Contests 

The qualifications required of voters is important as 
showing how far the mass of the people had a part in the 
choice of their representatives. iVmong the express quali- 
fications for voting, residence did not occupy an important 
place. The assembly of March, 1658, declared that all free- 
men in the colony could vote; but a foreigner could not be 
declared a freeman until he had resided in the colony four 
years. ^ In 1658 the burgesses resolved that persons hold- 
ing life estates should be allowed to vote in the county where 
the land was situated.^ By act of 1699 the voter was re- 
quired to be a freeholder in the county or town where he 
voted, but in neither act was anything said as to his place 
of residence. Six years later resident freeholders are men- 
tioned as voters. The same year all previous acts relating to 
the election of burgesses were repealed. The law of 1742 

' Hening, op. cit., i, 475, 486; see also p. 49-51, as a provision for 
naturalization must apply to voters as vi^ell as to office holders. The 
time of residence was made two years in 1660. (Hening, ii, 16.) Chal- 
mers, Polit. Annals, 315-16, says the first Virginia naturalization act 
was passed in 1676. Though this is probably true in regard to a general 
naturalization act, before that date there had been numerous special 
cases of naturalization and denizenation, both of which processes seem 
to have given the right of suffrage. See references to Hening above. 
The naturalization by the colony applied to Virginia only and gave no 
rights in other colonies or in England. Hening, ii, 290; Chalmers, 
Polit. Annals, 322. 

* Hening, op. cit., iii, 26. 

221] 59 



^O THE LEGISLATURE OF PROVINCE OF VIRGINIA [222 

said that the voters of WilHamsburg must reside there 
twelve months immediately preceding the election. Any- 
one who had obtained from the court of hustings a certi- 
ficate that he had served five years' apprenticeship in the 
city, and who was -an inhabitant and housekeeper within the 
city at the time of voting, was entitled to suffrage/ 

The English Parliament,^ in 1746, passed a general na- 
turalization law which provided that a voter must have re- 
sided in his colony seven years, have taken the oath of 
allegiance and professed the " Protestant Christian faith " 
before he was entitled to vote. The act did not require 
residence in any particular county or locality, but simply in 
the colony. This act was quite generally ignored in Vir- 
ginia and probably elsewhere. 

As has been said, the location of the freehold and not of 
the residence of the voter was the important requirement. 
The committee on elections once (March, 1755-6) tried to 
reverse this by declaring a vote invalid because the voter 
had not resided on the land long enough. Its decision was 
overruled by the house. ^ A similar action was taken in 
November, 1769.* From the last case it might be inferred 
that a man might vote in every county in which he pos- 
sessed a large enough freehold to entitle him to a vote. 
Although this was probably not so,^ Beverley's remark 
that freeholders only could vote for burgesses and that 
" wherever they have a Freehold (if they be not women or 
under age) they have a vote in the election," ^ might seem 
to point to multiple voting. 

' Hening, v, 205-6. ^Thwaites, The Colonies, 62. 

^Jour. of Burg., March, 1755-6, 32-5. 

*Ibid., Nov., 1769, 85. ^Hening, op. cit., viii, 306. 

* Beverley, bk. iv, 6-7. See also decision of committee on contests 
for assembly of Feb., 1745. Jour., 48. 



223] ^^^ HOUSE OF BURGESSES 5 1 

In discussing the residence of voters it has been necessary 
to refer to property qualification as well. This qualifica- 
tion will now be given further attention. 

There was a period during the Commonwealth when all 
freemen, including freed servants were allowed suffrage, 
"there being no property or other qualification."^ The 
restoration assembly of 1670 reversed this on the ground 
that when all freemen could vote, many who had little in- 
terest participated and often caused tumults and disturb- 
ances. It declared that since the laws of England restricted 
suffrage, Virginia would follow her example, and thereafter 
only " such as by their estates real or personal, have inter- 
est enough to tye them to the endeavor of the public good " 
should vote in Virginia. This interest was said to belong 
only to freeholders and house-keepers answerable for pub- 
lic levies.^ This was a part of the general scheme of the 
wealthy class to control the government, and in Bacon's as- 
sembly (1676) was referred to as one of the causes of the 
rebellion.^ Bacon's assembly restored the suffrage to all 
freemen.* At the same time it was declared that the James 
City burgesses should be chosen by the majority vote of 
house-keepers, freeholders and freemen listed there at the 
time of the election, providing the)'- were at the same time 
liable to pay tax levies there. No others were to vote. 
However, instructions to Berkeley that same year directed 
him to see that only freeholders should vote for burgesses 

^ Hening, i, 333-4, 403, 475, note; ii, 82, 280, 356; Hildreth, op. cit., 
i, 509; Ballagli, J. H. U. S., xiii, 351; Foote, 13. In 1665 housekeepers 
were allowed suffrage, but the following year all freemen were again 
given suffrage — Hen., i, act xvi, 403, 411-12; Bancroft, op. cit., i, 151. 

''Hening, op. cit., ii, 280; Hildreth, op. cit., i, 524; Bancroft, op. 
cit., i, 451. 

^ Ripley, op. cit., 30. 

* Hening, ii, 356-7; Hildreth, i, 543; Cooke, op. cit., 245. 



62 THE LEGISLATURE OF PROVINCE OF VIRGINIA [224 

because that was " the more agreeable to the custom of 
England." ^ This instruction overthrew the act of Bacon's 
assembly. 

As time went on the instruction given to Berkeley, that 
only freeholders should vote, became the fixed policy. A 
freeholder was defined to be a person having real estate, 
or having right for life in real estate, whether the right was 
for a period of his own life or that of another person.^ At 
first the amount of real estate required for suffrage was not 
defined, but it was soon fixed at a hundred acres or other 
greater estates; but, if settled upon, twenty-five acres with 
a house and plantation should be sufficient. The vote must 
be given in the county where the land was unless the tract 
was in two counties, and then the vote was to be cast in the 
county where the larger, part of it lay. A man must be in 
possession of his lands for one whole year before the elec- 
tion, unless they came to him by descent, marriage, mar- 
riage settlement, or devise. In towns freeholders owning as 
much as a house and lot might vote, or joint tenants either 
in or out of towns, might combine and cast as many votes as 
their property entitled them to give.® This law followed 
the English statutes closely.* It was passed in 1736 and 
was intended to prevent the ceding of small parcels of 
land or the making of leases on worthless considerations, a 
practice often resorted to solely to make more voters. Any 
such transfer of land to make voters was subject to a fine 
of forty pounds sterling, while a person not a freeholder 
and yet voting was to be fined five hundred pounds of 

' Hening, op. cit., ii, 425. 

^ Spotswood, Letters, ii, 2, says a freed servant who can purchase half 
an acre of land has an equal vote with the man of the largest estate. 
This is probably an exaggeration for most of the period. 

^Hening, op. cit., iv, 476; viii, 306. 

* Bishop, op. cit., 83, note 6. 



225] ^^^ HOUSE OF BURGESSES 53 

tobacco/ Just before the Revolution the time of holding 
land was reduced to six calendar months, and by the act of 
1762 the amount of unsettled land possessed was reduced 
from one hundred to fifty acres. The size of the house 
was to be not less than twelve feet square." It will be 
noticed that the property qualifications considered only the 
size, not the value of property.^ 

Religion was not expressly made a qualification, but the 
act of 1643 intended to drive out non-conformists,* and 
that of 1660 against the Quakers,^ indicates that those 
sects were not allowed the ordinary rights of other citi- 
zens, and when persons were known to belong to those sects 
it is probable that for a time they were disfranchised. 
Catholic recusants were also disfranchised. The Quakers 
were admitted to the franchise after 1699.*' 

In addition to the above conditions of franchise there 
were several classes expressly disqualified. The act of 1699 
said no woman, infant or popish recusant could vote. This 
was renewed in 1705, but with a provision for a fine of five 
hundred pounds of tobacco for violation of the act.^ 

Of more significance was the law of 1723 by which free 
negroes, mulattoes, and Indians were disfranchised in elec- 
tions for burgesses.® Servants were added to this list in 

^Hening, op. czL, iii, 172. '^Ibid., vii, S18-9. 

^ The alternation between limited and extended suffrage on a property- 
basis may be seen by reference to Hen., ii, 356-7; 362,425; i,403j 411-2. 

*See p. 55; Hening, i, 277, 341-2. 

^Hening, i, 'iZ'^'-Z', compare Bishop, 60. ^Hening, iii, 172. 

'In November, 1762, the committee on elections decided that a man 
who was charged with being a Roman Catholic was yet entitled to vote, 
as it had not been proved that he was a recusant convict. Jour, of 
Burg-., Nov., 1762, 70. 

* Hening, op. cit., iv, 133; vii, 519; Hildreth, op. cit., i, 235-8; 
Bishop, op. cit., 51, does not seem to have noticed negro disfranchise- 
ment before 1762. Bancroft, op. cit., ii, 256-7, says it was effected in 
1721, but no assembly met that year. 



64 THE LEGISLATURE OF PROVINCE OF VIRGINIA [226 

1742/ and as they were not apt to be freeholders they prob- 
ably continued to be disfranchised, though they were not 
mentioned in the acts of 1762 and 1769. Persons convicted 
in Great Britain or Ireland might not vote during the time 
for which they were transported.^ This was all confirmed 
in 1769.^ The convention of 1775 said, " free white men " 
niig-ht vote, and it is fair to conclude that others could not/ 
These references would seem to indicate that the disfran- 
chisement of the negro was general in the later period. In 
the absence of definite statements on the subject for the 
earlier years, are we to conclude that free negroes were al- 
lowed to vote during those earlier years? Howe says all 
freemen were allowed to vote in 1655.'^ Bancroft says that 
before 1721 there was no restriction on the right of 
the free negroes to vote.*' Chalmers' Opinions states that 
the lawyer, Richard West, to whom the English authorities 
had referred the Virginia act disfranchising negroes and 
mulattoes, declared the law of 1723 invalid, saying, "Al- 
though I agree that slaves are to be treated in such a man- 
ner as the proprietors of them may think it necessary for 
their security, yet I cannot see why one freeman should be 
used worse than another merely on account of his com- 
plexion." The government allowed the disfranchising act 
to stand, however.'^ It was enforced in the assembly of 
March, 1755-6, when the committee on elections declared 

'Hening, v, 205-6. "^ Ibid., vii, 519. '^ Ibid., viii, 307. 

^Ibid., ix. 58. The editor of William and Mary Quarterly, viii, 81, 
says the restrictions on suffrage were not great in Virginia, and that 
at the time of the revolution there were twice as many voters in Vir- 
ginia as in Massachusetts and that the apparent power of the aristocracy 
depended upon compliance with the popular will. 

*Howe, op. cit., 67. Howe may have made his statements regarding 
suffrage too general, as he has regarding townships. 

* Bancroft, ii, 256-7, ''Ibid., ii, 256-7; Chalmers, Opinions, 4Z9' 



227] ^^^ HOUSE OF BURGESSES 5c 

ineligible two men who had negro blood in their veins. ^ 
It would seem then that negroes possessing the regular 
qualification of voters were granted the franchise until 
1723 and then were permanently disfranchised. 

By act of 1661-2 voters were privileged from arrest on 
the day of the election of burgesses, except for " riotts, 
ffelony or suspicion of ffelony or escape out of prison when 
under execution." ^ 

Compulsory voting appeared early in Virginia. Pro- 
fessor Hart says : " The earliest and latest laws on the sub- 
ject were passed in Virginia." Eight different acts ap- 
pear.^ The assembly of 1646 provided for a fine of one 
hundred pounds of tobacco for every freeman who failed 
to appear at elections and vote, unless he was lawfully ex- 
cused.'^ In 1662 the fine was increased to two hundred 
pounds of tobacco.^ No proxy was allowed.® Compul- 
sory attendance at elections was far more important then 
than now, because at that time elections were a kind of de- 
liberative assembly where questions and candidates were 
openly discussed and decided upon. Plymouth was the 
only other colony which had compulsory voting throughout 
its history.^ Maryland and Delaware were the only others 
which had compulsory voting at general elections.^ 

The management of elections of burgesses followed closely 
the forms used in elections to the English House of Com- 
mons.^ 

^Jour. of Burg., 32-35. ^Hening, ii, 86; iii, 248. 

'Hart, Practical Essays on American Government, 43. Acts were 
passed 1646, 1662, 1705, 1763, 1788, etc. 

*Hening, i, 333-4- 

^ Ibid., ii, 82, also acts of 1705 (Hening, iii, 238), and 1762 kept the 
200 pounds fine. 

* Bishop, op. cit., 139. ''Ibid., 190. 

^Ibid., 192. ^Ibid., 98, 155. 



66 THE LEGISLATURE OF PROVINCE OF VIRGINIA [228 

The subject of colonial elections has been treated in a 
monograph by Cortland F. Bishop/ But except in one 
brief paragraph he does not treat elections in Virginia 
separately from those of the other colonies, and even in 
that paragraph he does not separate elections of burgesses 
from general elections ; hence it is here necessary to give as 
full a discussion of Virginia colonial elections as the re- 
cords will permit. 

At first it was customary for the sheriff to go from plan- 
tation to plantation to collect the votes. A law of 1639 
enacted that the sheriff should not compel any man to go 
off the plantation where he lived to vote." It is possible 
that this method was in use only before counties became 
representative units, and when the plantation was a voting 
unit or precinct. The law of 1639 was repealed in 1644. 
Meanwhile (1640) in Upper Norfolk county the burgesses 
were to be chosen within the Ihnits of the parishes, of which 
that county had three. It seems in that case that the parish, 
although not co-extensive with the county, was nevertheless 
the election precinct.^ In 1645 the seat of the county court 
was made the place of holding the election and the polling 
place was the county court house throughout the rest of the 
colonial period. 

Before 1775 there was no definite time at which the elec- 
tion should be held. But in that year the convent'on of 
delegates first declared that it must be held in April; later, 
in October, but set no particular day.* When vacancies 
occurred or the regular election was prevented at the proper 
time, special elections might be called.^ 

^ Bishop, Colonial Elections, Colutnbia University Series. 

' Hening, op. cit., i, xix-xx, 227; Robinson MSS., 220 (Va. Hist. 
Soc. Lib.). 
' ^Hening, op. cit., i, 250-1, 277. 

*Idid., ix, 54; Arch. Am., Ser. iv, vol. iii, 420-1. "Hen., ix, 95-100. 



229] -^^^ HOUSE OF BURGESSES 57 

When an election had been determined upon, writs were 
issued by the proper authority and sent to the sheriffs of 
the various counties. In England writs for parliamentary 
elections were issued by the Lord Chancellor, Lord Keeper 
or Lords Commissioners of the Great Seal/ In Virginia 
the issuance of writs of election was first in the hands. of the 
governor and then of the assembly. It was restored to the 
governor, and in 1660 was given to the secretary." The 
law of 1705 ordered that the writs were to be signed by the 
governor or commander-in-chief and the seal of the colony 
affixed.^ Writs for special elections were usually issued at 
the request of the house itself. 

In case the proper officer failed to send out the writ, the 
sheriff was to call the election without it* It was the 
sheriff's duty to give notice to the people of the time and 
place of holding the election. This notice must be given at 
least six days before election day.^ In the early period 
house-to-house notice was usually given,"^ but by the act of 
March, 1661-62 the sheriff was required to send copies of the 
writs to all ministers and readers, who were to read the 
notices on two successive Sundays after services under penalty 
of heavy fine for neglect. ' By the law of 1705 the governor, 
after signing and sealing the writs, was to deliver them to 
the secretary at least forty days before the time appointed 
for the assembly to meet. Within ten days after the date 
of the writs, the secretary was to transmit them safely to 

^Bishop, op. cit., 106. 

^Hening, op. cit., ii, 22. The laws of 1661-2 (p. 49) provided a heavy 
fine for the secretary if he failed to send the writ to the sheriff in time to 
give legal notice to the voters. 

'Palmer, Cal. of St. Pap., i, introd. xxxv, says that the writs were 
signed by the governor; Beverley, bk. iv, 6-7. 

*Hening, i, 517. '" Tbid., i, 30D. "Ibid., i, 411. 

''Ibid., ii, 82; iii, 237-8 (170S); Bishop, op. cit., 112. 



68 THE LEGISLATURE OF PROVINCE OF VIRGINIA [230 

the sheriffs of the counties, and they in turn, within three 
days, were to cause copies (with notice of the time and 
place of election of burgesses endorsed thereon) to be de- 
livered to the minister or readers of every parish. The 
election was to occur at least twenty days after the sheriff 
received the writ. The minister was to publish these notices 
after service every Sunday until election. He then was 
required to certify to the sheriff that the writ had been 
duly published according to law. In case of failure to do 
as here commanded the secretary incurred a fine of forty 
pounds current money, the sheriff two thousand pounds of 
tobacco, and a minister or reader one thousand pounds 
of tobacco. Thus the system which was inaugurated in 
1662 with some modifications became permanent. Every- 
body was supposed to attend church services, and since 
dissenting voters were not numerous in Virginia it 
is probable that only a few were not thus directly notified. 
Save that the fines were increased, this system continued 
unchanged up to the time of the revolution.^ 

The officers of election provided for in the laws are 
those already mentioned, viz : the governor and secretary 
who sent out the writs, the minister who published them, 
the sheriff who arranged for and presided at the elections 
in the various counties, and then made returns to the secre- 
tary, and later the county clerk who kept a record of the 
returns. Clerks were mentioned in the last part of the 
period, though some of the contests would seem to indi- 
cate that each candidate furnished his own clerk. Clerks 
are not mentioned in the records for the earlier part of the 
period. 

The method of casting the vote at first seems to have 
been by subscription. That is, a paper, possibly headed by 

^Hening, op. cit., vii, 520. 



231] THE HOUSE OF BURGESSES 6q 

the name of a candidate, was handed about. To this paper 
the voters subscribed their names, so that at the end of 
the voting the combined hsts gave the total of the votes 
for each candidate and the names of those voting for 
each candidate/ This method did not require the per- 
sonal attendance of the voters at any one place, was 
more public, and gave fewer opportunities for corrup- 
tion. Nevertheless it was made illegal after October, 
1646,^ but seems to have been useid for a time after that 
date.^ However, personal attendance at elections gradually 
came to prevail. The same reason as that for compul- 
sory voting — that of making the elections deliberative 
bodies — induced the legislature to require personal attend- 
ance. Both requirements were made at the same time. 

The law of 1699 declared that if the election could not be 
determined " upon view by the consent of the freeholders 
present," the sheriff or his deputy should appoint as many 
persons as he should think best to take the poll.'* The 
persons so appointed were to " sett down the names in writ- 
ing of each freeholder and for whom he shall poll." Vot- 
ers, excepting Quakers who make affirmation only, might be 
required to take the oath.^ The law of 1705 contained the 
additional provision that the clerks and others appointed 
by the sheriffs must take an oath. At that time the vote 
was to be taken as follows : the clerk " shall write down 
the names of all the candidates, every one in a several 
page of the book, or in a particular colmrm; and then the 
name of every freeholder coming to give his vote shall 

^Hildreth, op. cit., i, 339; Foote, Sketches of Fa., 13. 
"Hening, i, 333-4- ^Idid., i, 403. 

^In 1693, however, it seems a poll was required to make the election 
valid. Set Jour, of Bti,rg., Mar., 1693, 9-10. 
^Hening, op. cit., iii, 172; iv, 476-7- 



yo THE LEGISLATURE OF PROVINCE OF VIRGINIA [232 

be, fairly written in the several pages or columns respec- 
tively, under the name or names of such persons as he 
shall vote for." ^ Every voter could vote for two per- 
sons, but he need not vote for both of these at one time. 
After all votes offered were received, the sheriff was to 
make declaration three times from the court house steps, 
and if no more freemen offered to vote, he was to conclude 
the poll. The law of 1762 was very similar, but required 
the voter to cast both his votes at the same time instead of 
allowing- him to vote twice, voting for one candidate each 
time,^ and empowered and required the sheriff at the re- 
quest of candidates or their agents to continue the election 
to the next day if necessary in order to allow all to vote.^ 

The following excellent description of a Virginia elec- 
tion at the beginning of the nineteenth century (and which 
Ingle* says is similar to those of the earlier periods), is 
taken from the Baltimorean of October 27, 1883 : 

All voted openly and aloud without the intervention of the 
sneaking ballot. The candidates sat on the magistrate's bench 
above. The sheriff stood at the clerk's table below ; called every 
voter to come, and announced how he voted. The favored can- 
didate invariably bowed to the friend who gave him his vote, 
and sometimes thanked him in words. All over the court- 

'Hening, iii, 239; vii, 521. ^ Ibid., vii, 521. 

^ Ibid., op. cit., vii, 521-22. The journal of the burgesses for May, 
1742 (pp. 54-5), records an election contest in which the sheriff (because 
of a drunken riot) on promise of indemnity by the candidates, postponed 
the conclusion of the election to the following day. The law then did 
not permit this. The candidates refused to sign the indemnity bond 
and so the sheriff re-opened the poll and declared elected the candidates 
having the highest votes. These persons were unseated by the bur- 
gesses. It seems probable that the law did not provide a distinct time 
for opening or closing the polls, and the sheriff was allowed to use his 
own judgment. See Jour, of Burg., Nov., 1769, 9-10. 

* Ingle, Edw., J. H. U. S., iii, 182. 



233] T^^ HOUSE OF BURGESSES 7 1 

house were men and boys with pens and blank paper who 
kept tally, and could at any moment tell the vote which each 

candidate had received The election over and the 

result proclaimed by the sheriff from the court-house steps, 
forthwith the successful candidates were snatched up, and 
hoisted each one on the shoulders of two stalwart fellows 
with two more to steady them, and carried thus to the tavern, 
where there was a free treat for all at the candi- 
date's charge/ 

When the polling of the votes closed, the sheriff had to 
make a return of the results of the election. At first this 
return was made to the secretary's office only, but later 
he was required, under oath, to deliver copies of the ori- 
ginal poll to the county clerk to be placed on record. 
Heavy penalties were provided for any failure to make 
such a return or for a false return. In the last half of the 
seventeenth century the tendency was to impose a heavy 
fine.^ Later the offending sheriff was called before the bur- 
gesses, and if he could explain his failure to make a return, 
or could amend his return to the satisfaction of the house, 
he was discharged.^ Otherwise he was subjected to such 
punishment as the law or the house might provide. If only 

■ Quoted in the Baltimorean, Oct. 2"], 1883, from an article by W. O. 
Gregory, in the " Farmer and Mechanic" of Raleigh, N. C. 

^ In i65g a fine of 2000 pounds of tobacco was imposed for failure to 
make returns. (Hen., i, 532.) In 1670 a false return might incur a 
fine of 20,000 pounds to the use of the county and 10,000 to the use of 
the aggrieved person, with addition of all costs and damages. {Ibid., 
ii, 356-7.) In 1660 the assembly fined Martin Baker, high sheriff of 
New Kent, for "undue proceedings" in the election of burgesses. 
{Ibid., ii, 33-) 

^ A few instances where explanations were required are given in the 
following references: Jour, of Burg., May, 1742, 8; Oct., 17SS, 9; 
March, 1755, 6, 28; Oct., 1710. Cat. St. Pap., i, 142, etc. Also ex- 
planations for failure to make returns: Jour, of Burg., Oct., 1755, 9; 
March, 1756, 16-17; March, 1756, 57-60; April, 1757, 12, 44-5; Nov., 
1761, 18, etc. 



^2 THE LEGISLATURE OF PROVINCE OF VIRGINIA [234 

some small technical point of the law was unfulfilled the 
clerk of the house corrected the return/ 

Judging the election and qualifications of members 
was an important step in the process. It will be re- 
membered that the legislature of 16 19 refused to admit two 
burgesses because it judged them not properly qualified. 
In November, 1652, the burgesses carried this so far as 
to expel two members whose characters were considered 
inconsistent with the high standard expected of burgesses.^ 
There are many other instances in which the house as- 
serted its control over elections of its own members.^ The 
case of Isle of Wight county which had returned three 
members contrar}^ to the law then in force, already has 
been referred to.* The decision of the house that " since 
no burgess is admitted without legal and deliberate exam- 
ination of his returns, that it cannot consist with the honor 
of the house to dismiss him from attendance during the con- 
tinuance of that assembly of which he is a member," sums 
up the whole power belonging to the assembly, and shows 
it to have full and exclusive authority to decide on the 
qualifications and return of members. 

The first record of something resembling the modern 
committee system for examining election returns appears 
in the orders of the assembly of 1663, when such a com- 
mittee was appointed to examine the election returns of 
newly elected members.^ The committee on privileges and 

^A few references: Jour, of Burg., May, 1742, 8; Oct., 1755. 

'Hening, i, 374-5; see p. 51. 

•' The assembly of 1659 decided a contested election case in favor of 
the return made by sherifif. [Ibid., 1, $14.) There was also a case where 
the sheriff was fined for taking too active a part in the election. {Ibid., 
ii, 33, etc.) 

*Hening, op. cit., ii, 253; see p. 43. 

*Hening, ii, 198; Randolph MSS., 281. 



235] ^^^ HOUSE OF BURGESSES 73 

elections grew in importance until in the eighteenth century 
many pages of the journals of the house are filled with the 
reports of that committee. After the committee was estab- 
lished it would seem that the usual process was to refer 
to the committee such matters as election contests, 
charges against members, breaches of privilege, etc. The 
committee either investigated directly or provided for in- 
vestigation before justices of the peace, then made its 
report and recommendations to the house. Occasionally 
the house settled such questions without referring them 
to the committee. During the time the case was under 
consideration in the house, the member whose case was 
under discussion withdrew.^ 

Most of the occasions for examining into elections were 
furnished by contests. Contests were made in Virginia 
much as in England, either by petition or by " scrutiny." ^ 
This last meant simply an examination of the poll-list. In 
England tie votes were decided by the House of Commons, 
but in Virginia the sheriff, if a freeholder, decided by re- 
turning either member he pleased.^ 

The method of procedure as laid down by the assembly 
of September, 1744, was that the petitioner (or his agent) 
who brought the contest, should give to the sitting mem- 
ber a list of the voters objected to, with the objections to 
each. The sitting member should then do the same thing 
for the petitioner. Sometimes this had to be done within 
three days, sometimes within ten, and sometimes no time 
was stated.* In some cases the evidence seems to have 
been given directly before the committee. In others, prob- 
ably those counties at a distance, evidence as to the quali- 
fications of voters was taken before justices and then certi- 

^Jour. of Burg., May, 1742, 27. ^Hening, vii, 522. 

^ Ibid., vii, 522. *Jour. of Burg., March, 1756, 10, 12, 13, 18, etc. 



74 THE LEGISLATURE OF PROVINCE OF VIRGINIA [236 

fied to the committee. The voter, even though he had 
taken oath to owning a freehold, was yet subject to ex- 
amination by both sides as to whether he had a freehold, 
how long he had possessed it, and whether or not he had 
paid quit rents for it, etc/ In case the house thought that 
a contest petition was frivolous and vexatious, the ex- 
penses of the sitting member in defending himself were as- 
sessed on the petitioner.^ The recommendation of the 
committee was usually accepted by the house, but the fact 
that occasionally a case was referred back to the commit- 
tee or the recommendation entirely rejected shows how 
vigorously these contests were sometimes fought out. 
Either party could have an attorney and sometimes the 
clerk of the committee on contests was allowed to serve in 
that capacity.^ 

Although we do not have a full record of the committee's 
proceeding's and of the evidence that came before it, the 
journals contain the substance of its reports to the house. 
A careful perusal of these reports reveals much of the inner 
workings of the elections for burgesses, as well as something 
of the character of officials and candidates. For this reason 
some of the more interesting of the very large number of 
contests will be related here. Doubtless there were cases 
where the laws were stretched in order to qualify some one 
to vote; and it is certain that then, as now, fraud was some- 
times practiced and occasionally with success. This was 
probably the case in the election in Elizabeth City county 
for the assembly of November, 1762, when evidence was 
presented to the committee to show that one man who for 
years had been so demented that he did not recognize his 

^ Jour, of Burg., Sept., 1744, lo-ii; Feb., 1745, 13; Nov., 1762, 70, etc. 
"^ Ibid., Feb., 1745, 16, 51; Mar., 1756, 70, etc. 
^ Ibid., Feb., 1745, n; Mar., 1756, 6-7. 



237] THE HOUSE OF BURGESSES y^ 

friends on the street, was on the day of election fully in 
possession of his senses and competent to vote. The evi- 
dence presented to show his competency was that he had 
asked who was ahead and when told that his candidate 
was behind he had asked to be carried to the polls to vote, 
and that on the way his shoe having fallen off he had 
known enough to stop and have it picked up. The commit- 
tee decided that the man was in his right mind at that time 
and therefore a legal voter.^ From all the evidence pre- 
sented in the many contests, to be referred to later, it is fair 
to infer that elections in colonial Virginia were not more 
ideal than our elections of the present day. 

It sometimes seemed that people took advantage of 
election contests to stir up scandal or to gain some private 
advantage. In the contest of John Tabb against William 
Wages of Elizabeth City county, 1755-6, the right of two 
persons to vote rested on their claim to the same land. 
One of these had occupied the land for several years; the 
other held deeds and said the occupant was illegitimate and 
could, therefore, not get valid title from his reputed father. 
Only the man who had valid title to the land was the legal 
voter ; hence it followed that whoever the committee should 
decide had a right to vote, could claim by this decision a 
presumption of title to the land. As to the legitimacy of 
the occupant, the committee wisely said, " your Committee 
did not think proper to enter into the Examination of that 
Point." Nevertheless it decided that the occupant and not 
the other man was entitled to vote.^ 

One of the most frequent grounds of contest was that of 
treating at election or before. The law prohibited treat- 
ing after the election writ had been issued. Yet the testi- 

^Jour. of Burg., Nov., 1762, 27-31, 36. 
^Ibid., Mar., 1755-6, 32-7, 58. 



76 THE LEGISLATURE OF PROVINCE OF VIRGINIA [238 

mony showed that this law was not strictly enforced. 
Violation of this act was in a certain sense regarded as 
bribery, and for that reason will be associated with other 
bribery cases. 

Though laws concerning bribery in elections had long 
before been enacted in England, in Virginia they first ap- 
peared in 1699. Then it was provided that any gift of 
money, meat, drink, or provisions for votes, would make 
the election void. Even a promise to give anything to in- 
fluence a vote, disqualified the promisor to sit as a burgess.^ 
By the law of 1762 the time within which treating was pro- 
hibited was extended so as to begin with the dissolution 
of the assembly.^ After a few years this was modified so 
as to allow the candidate to entertain in his own house in 
the ordinary course of hospitality.^ 

These were the legal provisions; but in 1745 the bur- 
gesses passed a resolution for their own guidance as fol- 
lows : 

Resolved, That if it shall appear any Person hath procured 
himself to be elected, or returned a Member of this House, 
or endeavoured so to be, by Bribery or any other corrupt 
Practices, this House will proceed with the utmost Severity 
against such Person. 

Resolved, That if it shall appear that any Person hath 
been tampering with any Witness, in Respect of his Evidence 
to be given to this House, or any Committee thereof, or 
directly or indirectly, hath endeavoured to deter or hinder 
any Person from appearing or giving Evidence, the same is 
declared to be a high CrimxC and Misdemeanor, and this House 
will proceed with the utmost Severity against such Offender. 

' Bishop, op. cit., 197; Hening, op. cit., iii, 173. This was re-enacted 
in 1705, Hen., iii, 243. 

^Hening, vii, 526. ^ Ibid., viii, 313-4. 



239] '^HE HOUSE OF BURGESSES yy 

At the same time they adopted the committee report to 
prevent treating after the issue of writs for election of 
burgesses/ 

The need for the resolutions is shown by a contest 
that was reported by the committee just a short time after 
the adoption of these resolutions. It was the case of 
Francis Epps against Stephen Dewey of Prince George 
county. The evidence shows, that on the evening before 
the election nearly eighty voters of that county, some of 
whom lived more than thirty miles distant, went to the 
home of Dewey, and, because it was very cold and the 
ground covered with snow, were entertained over night at 
Dewey's, where they were supplied with food, shelter and 
rum; that Mrs. Dewey said she was busy all night giving 
out rum; that at least one and perhaps several voters were 
drunk the next morning; that neither Dewey nor any one 
for him had invited these people to come, or had at any 
time solicited votes for him; that most of those present 
voted for him the next day, but had intended to do so even 
before the}^ went to Dewey's; that one person who voted 
for Dewey said although he had promised to vote for him, 
he would not have done so if he had not gone to Dewey's 
that night; that on election day Dewey's wife employed a 
neighbor and friend to take some of Dewey's negroes and 
a hogshead of punch to the court house ; that the friend put 
the punch about a hundred yards from the door, arranged 
the faucet, tasted it to see if it had enough spirit in it, 
and then went into the court house; that soon after the 
voting began, Dewey's negroes, in the absence of the 
neighbor, invited the freeholders to drink, and said those 
for Dewey could drink as much as they pleased; that two 
witnesses testified that William Hall, a son of Dewey's wife, 

'^Jour. of Burg., Feb., 1745, 19-20. 



78 THE LEGISLATURE OF PROVINCE OF VIRGINIA [240 

intreated several persons to drink; that Dewey had not 
known of, or ordered these things done, and on election day 
he had refused to treat before the poll was concluded; that 
when Dewey's friends had heard of the punch they had 
gone to the hogshead, pulled out the faucet and stopped 
it up. Such was the testimony. The committee declared 
that Dewey had not been at fault and therefore had been 
duly elected. The house sustained this declaration by a 
vote of fifty-three to seven. The petitioners were assessed 
Dewey's costs in defending himself. 

This decision was reached on Saturday and on the Mon- 
day following Mr. Conway who had made the report of 
the committee on contests on Saturday was ordered to 
bring- in a bill to prevent giving or selling strong drink on 
election day before the polls closed. He brought in the 
bill the next day.^ It would hardly be expected that an as- 
sembly that had failed to see the weak points in its decision 
of the Dewey case, would be able to provide for a law to 
remedy the evils there shown; and in fact, neither at that 
session or at any other of that assembly does any such law 
appear to have been passed.^ 

Another instance occurred in the election to the assembly 
of April, 1757. A contest made on the ground that the 
candidate had treated, was opposed on the plea that the 
treating was not done by the candidate or by his orders. 
Nash, the sitting member, admitted that when the bill for 
liquor was presented to him after the election, he had paid 
it. Such bills had been paid by all other candidates except 
the contestant who had refused to pay for any save " a 
Tickler of Rum and a Bottle of Rum " which he had or- 
dered. The house decided in favor of Nash.^ 

'^Jour. of Burg., Feb., 1745, 59 ff, (iT. 

^Hening, op. cit., v, 310-407. 

^Jour. of Burg., April, 1757, 56. A side piece of evidence was to the 



241 ] THE HOUSE OF BURGESSES yg 

In general it may be said that where the evidence was to 
the effect that the candidate knew of the treating he was 
commonly held to be disqualified to hold the seat, and if he 
did not know of it he was not disqualified.^ 

An arrangement between the member and the person 
contesting to withdraw the contest or to exclude certain 
evidence was regarded as corrupt and sufficient ground for 
declaring the seat of the sitting member vacant, and the or- 
dering a new election. ^ An offer to serve without pay, 
made for the purpose of influencing votes was considered 
bribery.^ 

Punishment for violating the election laws has already 
been referred to incidentally in other connections, but a few 
additional cases will be noticed. In April, 1684, a sheriff 
was fined two thousand pounds of tobacco for making an im- 
proper return. ^ In 1745 some candidates gave a written 
promise to oppose county or parish division and thereby 
got many votes. It was held that these men were not 
duly elected. ^ Any one interfering with the election was 
subject to punishment either of a reprimand by the house, 
a fine, or such other penalty as the house determined upon. 

Vacancies were filled by special elections managed in the 
same way as regular elections were. The few cases men- 
tioned in the early record do not indicate definitely who 

effect that a merchant had offered to pay costs of a suit against Nash 
(if the plaintiff could prove that Nash had been at fault in the suit), 
providing the said plaintiff would vote for Nash. He so voted. 

Woicr. of Burg., May, 1740, 41-2; May, 1742, Z7; March, 1755-6, 
23, 32-5; March, 1756, 58; 1772, loi; etc. 

"^Ibid., May, 1742, 38, 41, 57. 
• ^ Ibid., March, 1755-6, 32-5; Chalmers, Hist, of Rev., ii, 71. 
* Virginia Mag. of Hist., x, 238. 
^Jour. of Burg., Feb., 1745, 'IZ. 



8o THE LEGISLATURE OF PROVINCE OF VIRGINIA [242 

issued the writs for such elections/ but it seems probable 
that they were issued as in regular elections," from the 
secretary's office, probably on notice of a vacancy from the 
house. At a later time the house asked the governor to 
issue writs to fill vacancies. The act of 1699 provided that 
the sheriff should appoint a sufficient number of persons to 
notify the freeholders of the time and place of the election 
to fill vacancies.^ This law was re-enacted in 1705,* in 
1762,® and again in 1769.*^ After the overthrow of the 
royal government, the president of the convention was di- 
rected to issue an order to the sheriff or the clerk of the 
county committee to call an election to fill the vacancy.'^ 
In some respects this followed the plan in use in England, 
as when parliament was not in session the speaker made 
a request to the king's secretary to issue writs calling elec- 
tions to fill vacancies.^ 

'Hening., op. cit., i, 374-5, 493. ''Ibid., ii, 105, 203, etc. 

^Ibid., iii, 174. ^Ibid., 241. 

^Ibid., vii, 525. ^ Ibid., viii, 312-13. 

"^ Ibid., ix, 55. Am. Arch. Ser., iv, vol. iii, 421. 

® Bishop, op. cit., no, cites Geo. Ill, chap. 41. 



CHAPTER IV 

The House of Burgesses — Organization and 
Procedure 

Officers were one of the first essentials in the organiza- 
tion of the house. In the records of the seventeenth cen- 
tury the only officers mentioned are speaker, clerk, and 
sergeant-at-arms. Yet it is probable that a chaplain, 
doorkeepers, and messengers always present in later 
times, were also a part of the machinery of the earlier 
period. The mere absence of any notice of these officers 
is not conclusive evidence that they were not present, for 
Hening says nothing even of a speaker from 1619 to 
1646 ^ though it is reasonably certain that there was such 
an officer at every session of the assembly. So there might 
have been other officers and yet no mention may have been 
made of them. The office of treasurer ^ was probably one 
of later development, the money at first being in control 
of the royal officials. It was realized that control over the 
treasurer would mean a more certain control over the dis- 
bursement of money, and that to elect him was to have 
power to control him. At first the whole assembly elected 
the treasurer,^ but gradually the burgesses secured the 
privilege of keeping money, as well as money bills, in their 

^Hening, i, 322. 

^A royal treasurer was appointed from 1636 to 1693, when the office 
became elective. Fa. Mag: of Hist., ix; Stanard, Colonial Register. 

' Hening., op. cit., iii, 93. The first treasurer elected by the assembly- 
was Col. Edw. Hill, 1691. 

243] 81 



82 THE LEGISLATURE OF PROVINCE OF VIRGINIA [244 

own control. They elected the treasurer usually from their 
own number, and from 1738 to 1766 the same man held 
both the offices of speaker and treasurer/ 

The title of the presiding officer was "speaker," and it was 
never changed till the convention of 1775, when he was 
called president." When the assembly came together for 
the first time one of its earliest duties was to choose a 
speaker for the house of burgesses. Nothing relating to 
the manner of choosing the speaker appears in the records 
before 1653. At that time the governor and council sent 
a letter to the assembly advising them not to elect Lieu- 
tenant Colonel Chile as speaker, because he was inter- 
ested in a vessel soon to arrive, and the vessel was to be a 
subject of discussion by the assembly.^ After taking the 
oath, the burgesses sent a committee of four to the gov- 
ernor and council to learn their reasons " wherefore they 
cannot joyne with us the burgesses in the business of this 
assembly about the election of Lieut. Coll. Walter Chile 
for speaker of this assembly." At last Chile was elected 
speaker by a " plurality " vote, but on his own request he 
was allowed to resign so as to give his attention to his 
private affairs. William Whitby of Warwick county was 
then chosen to the place. From this case it would seem 

^The house once said that money should be paid out only on its order. 
(Hartwell, Blair and Chilton, 62.) In 1758 the governor was instructed 
by the home government to separate the offices of speaker and treas- 
urer, but the separation did not take place until eight years later. Then 
upon the death of the incumbent he was found indebted to the colony 
to the amount of ^100,761. 

"^ Arch. Am. Series, iv, vol. iii, 421; also Jour, of Convention. 

'Upon its arrival the ship was declared forfeit, and was sold to Chile 
for .1^400, the appraised value. The sale was made by the assembly, and 
the bill of sale executed by the governor and the speaker of the assem- 
bly. It is not strange therefore that the governor and council should 
have had objections to Chile. Hening, op. cit., i, 382, 385. 



245] ORGANIZATION AND PROCEDURE go 

that the speaker was chosen by the assembly, and that the 
governor and council as a part of the assembly had a voice 
in his election ; that is, the choice vt^as a right of the whole 
assembly and not of the burgesses alone. ^ Nevertheless 
the burgesses of 1659 by a unanimous vote chose Edward 
Hill as speaker and his election was confirmed by the gov- 
ernor,- and this last seems to have been the regular method 
of choosing after that date. Even at this session the bur- 
gesses asked the governor to assist them in preparing an 
address to the Lord Protector, asking the confirmation 
of the privileges they then possessed, especially the election 
of their own officers.^ The same man was frequently 
re-elected speaker by several succeeding assemblies. John 
Robinson served as speaker for about twenty-five years,* 
though he was not always re-elected without opposition.^ 

The speaker's duties were those ordinarily belonging to 
the presiding officer in that age, such as presiding over 
the deliberations of the house, signing bills after passage 
by the assembly, and acting as spokesman for the house. 
Just before the revolution his powers were somewhat ex- 
tended. In at least one instance a tie vote was decided by 
the speaker's vote.*' For his services he received a salary 
which ranged from 6,000 to 10,000 pounds of tobacco 
annually. " 

Although the secretary of the colony was not in the strict 
sense an officer of the assembly, his office had of necessity 
close relations with the legislature. The king appointed 
to this office, but sometimes indirectly through the gov- 
ernor. 

^Hening, op. cit., i, 377-9- "^Ibid., 505-6, note. 

^ Ibid., 512. *Tyler, Patrick Heitry, 56. 

^Jour. of Burg., May, 1742. ^ Ibid., Nov., 1769, 144. 

'Hening, i, 424 (1656); ii, 38 (1660-1). 



84 THE LEGISLATURE OF PROVINCE OF VIRGINIA [246 

The clerk of the burgesses was for a time elected by 
that body. But in 1686 James II wrote to the governor 
directing him to dismiss Robert Beverley, clerk of the 
burgesses, because he had dared to discuss the veto power 
of the governor, and because he had refused to surrender 
the records of the house of burgesses/ The governor was 
directed to appoint some one else as clerk and to see that 
the new clerk did the work. However, the king directed 
that the assembly should continue to pay the clerk.'' 
Francis Page was appointed by the governor.^ This 
seems to have established a precedent and the governor 
continued to appoint to this office. In 1693 the burgesses 
tried to recover their " antient usage and custom " of 
choosing their own officers,* but as late as September, 1744, 
and probably till the revolution, the clerk still held office by 
commission from the governor.^ 

There is some confusion in the records in the use of the 
term clerk. In the journal of the upper house the clerk is 
sometimes called the clerk of the council and sometimes 
clerk of the general assembly.*' In most references the 
house clerk was the clerk of the burgesses and the clerk 
of the council was the clerk of the assembly. The gov- 
ernor appointed the clerk of the burgesses in the presence 
of the council in the council chamber.'^ The clerk of the 

^Hildreth, op. cit., i, 562; Randolph Papers, iii, 309, 429-34 (Va. 
Hist. Soc. Lib.); Hartwell, Blair and Chilton, 28-30, 40. See Hen., 
iii, 541-71, for documents relating to Beverley. 

^Hening, iii, 40-1, 550; Joiir. of Coun. as Upper House, Aug. (1702), 
I, 2, 3- 

^Palmer, Cal. St. Pap., i, introd., xxxvi, xliii, 20. 

*Ibid., i, xlvi, 33; Jour, of Burg., March, 1693, 8-12. 

^Ibid., 1744. 

^Jour. of Coun. as Upper House, Nov., 1685, 57, 65. 

''Ibid., Aug., 1702, 2-3; Jour, of Burg., May, 1740, i. 



247] ORGANIZATION AND PROCEDURE 85 

general assembly was probably also appointed in a similar 
way/ 

Throughout most of the i8th century the house had four 
doorkeepers and the council one. These were chosen by 
each house for itself and were paid by appropriations from 
the general treasury. When a vacancy occurred persons 
petitioned for the place and the house voted on the candi- 
dates. While the house met at Jamestown it was custo- 
mary to make the parish sexton one of the doorkeepers.^ 
In 1772 these officials were furnished a "decent Suit of 
Clothes " and " a great Coat " by order of the house. 

In the middle of the 17th century the sheriff of 
James City county was acting as sergeant-at-arms.^ It was 
the usual custom for -the house to elect some one to hold 
the position of sergeant-at-arms and mace-bearer. Yet 
about 1752 Thomas Hall presented a commission from the 
governor and was admitted to that office. Somewhat later 
in the same session the governor " appointed " Mr. Epps 
to succeed Mr. Hall, which seems conclusive evidence that 
for a short period the governor filled the office.^ 

The records do not show whether or not the messenger 
was a permanent officer, but in 1692-3 when the governor 
directed the sheriff of James City county to provide an offi- 
cer to attend the burgesses, the house replied that it had 
already appointed a messenger of its own.^ Whether per- 
manent or temporary, this shows that the office was filled 
by the house itself. 

In 1 71 8 the general assembly and general court em- 
ployed a regular chaplain, to be paid one pound current 
money for each sermon preached.® But it is probable that 

» Palmer, Cal. of St. Pap., i, 93- Ubid., 58. 

'Howe, op. cit., 66. ^Jour. of Burg., Feb., I75-. I. 1^18. 

* Palmer, op. cit., i, 33; Jour, of Burg., March, 1692-3, 4-5. 
^Palmer, op. cit., introd., Ix. 



86 THE LEGISLATURE OF PROVINCE OF VIRGINIA [248 

the house had its own chaplain during most of the i8th 
century. It was his duty to attend and read prayers each 
morning about one hour before the regular meeting of the 
house. For this he was paid a regular salary. The only 
other officer was a public printer, whose position was cre- 
ated when it became customary to print the session laws 
and the journals. 

Thus we see the burgesses developed a set of officers 
similar in most respects to those of the present-day 
legislative body. Since the same body, the English par- 
liament, served as the model for the Virginia colonial as- 
sembly and for the modern legislative body, this simi- 
larity is to be expected. This account serves to show the 
similarity and also the order of development of the differ- 
ent officers. 

The privilege and immunities of members of the house 
were never very numerous, consisting of only a few well 
defined principles. Of these the earliest to be declared was 
freedom from arrest. It will be recalled that the assembly 
of 1623, under the company, gave to members this im- 
munity during the session for one week before, and one week 
after. The privilege was again claimed in 163 1-2, and in 
1643. C>n the latter date the time of freedom was ex- 
tended so that the law should go into effect at the time of 
the election and continue in force until ten days after the 
dissolution of the assembly.^ In March, 1658, the privilege 
formerly granted to the members of the assembly was ex- 
tended to their attendants and for the same time as men- 
tioned in 1643.^ A little later (1661-2) this was so modified 
that, if the assembly adjourned for more than one month, the 
privilege should expire ten days after the end of the first ses- 
sion. If the member was arrested during the time between 

^Hening, op. cit., i, 263. ^Ibid., i, 444. 



249] ORGANIZATION AND PROCEDURE g? 

sessions and prosecuted to execution, he was to have a sus- 
pension of execution ten days before the next session began, 
and this suspension was to continue till ten days after the 
close of the session.^ A law of 1664 provided that no 
arrest should be made at James City for the period of five 
days before and five days after the sessions of the general 
court and of the assembly, unless the person or persons re- 
sided in that county." This was plainly the result of an 
effort to prevent the interference of the local authorities 
with the general government, and reminds us of the pur- 
pose of exclusive congressional control of the District of 
Columbia. 

The privilege of freedom from arrest seems to have been 
considerably modified in 1705. It was then enacted that 
members should be " in their persons, servants, and estates, 
both real and personal, free, exempted, and privileged from 
all arrest, attachments, executions, and all other process 
whatsoever (save only for treason, felony or breach of 
the peace) during his or their attendance upon the General 
Assembly, by the space of ten days before the beginning, 
and ten days after the conclusion of every session of the 
Assembly." ^ In case an assembly was prorogued more 
than twenty days process might begin, but it must cease 
ten days before the beginning of the next session. This 
was re-enacted in 1762.* 

Not only were the burgesses privileged from arrest but 
it would seem they could not waive that privilege without 
consent of the house. At least, April 13, 1756, the house 
ordered that Mr. Power and Mr. Clinch have leave to 
waive their privilege and answer to indictments preferred 

^Hening, op. cit., ii, 107; Laws of 1661-2, 51. 

*Hening, ii, 213. ^ Ibid., iii, 244; Beverley, bk. iv, 7. 

*Hening, vii, 526-7. 



THE LEGISLATURE OF PROVINCE OF VIRGINIA 



[250 



against them in the general court then in session. At the 
same time members of the house were given permission to 
appear as witnesses in cases where other members were 
under indictment/ A year later it was resolved that 
privilege from arrest did not apply to cases involving 
breach of the peace. ^ A court-martial might not proceed 
against members during a session.^ Freedom from arrest 
was extended even to the person employed by the clerk to 
engross bills and to transcribe business of the assembly.* 

That it was not the intention to have this privilege used 
unfairly is seen in a case which occurred in 1764. An execu- 
tion had been issued by the general court against a bur- 
gess's property in slaves, and he was about to use his free- 
dom from arrest to defy the decree of the general court 
and remove the slaves from the colony, when the house al- 
lowed execution to be served. '' 

From the instances here cited it is clear that this privi- 
lege was granted partly for the convenience of the in- 
dividual member (as in case of protection to servants of 
members), but largely that the public business might not 
be interrupted for trifling reasons, or by factious or re- 
vengeful persons, and that abuse of the privilege was not 
permitted. 

Another privilege of burgesses during the greater part 
of the colonial period was immunity from compulsory ser- 
vice as sheriff.*' Appointment to the office of sheriff had 
been used by the govenor to get rid of burgesses who were 
obnoxious to himself.'^ 

^Jour. of Burg-., Mar., 1756, 40. ^Ibtd., April, 1757, 14. 

^Ibid., Sept., 1744, 61. '^Ibid., Oct., 1764, 26. 

^ Ibid., Oct., 1764, 71. 

®For one of several acts see Hening, op. cit., iv, 292. 

' Hartwell, Blair and Chilton, 28. 



251] ORGANIZATION AND PROCEDURE go 

Leave of absence was not a privilege belonging to mem- 
bership, but it was a very common grant by special act of 
the house itself. Sometimes permission to be absent was 
granted for but a few days, sometimes for several weeks. 
Sometimes it was granted because of ill health of the mem- 
ber, sometimes that he might attend to private business 
matters.^ The most peculiar privilege was that of getting 
credit for drinks at the Williamstown ordinaries during 
sessions. When the assembly was not in session this was 
not permitted." 

During the eighteenth century there seems to have de- 
veloped the privilege of a member to be protected from 
slander, and in slander cases the records seem to make 
little distinction between the privilege of the member and 
the privilege of the house, for as a rule a slander of even a 
single member was looked upon as a breach of privilege 
of the house as well as of that member. Therefore in the 
following examples no effort will be made to distinguish 
one sort of privilege from another. 

Mr. Fife, a clergyman of Norfolk, preached a sermon 
which reflected on two burgesses and the committee on 
privileges was ordered to investigate to ascertain whether 
there had been a breach of privilege.^ In 1735, John Don- 
castle was declared guilty of a breach of the privilege of 
the house and ordered into custody because he had used 
abusive language toward a member and had said he would 
deny that member entertainment if he ever came to the 
house. Doncastle made excuse that he was irritable be- 
cause of ill health and asked pardon for the offense. This 

'For some cases of this set Jour, of Burg., Feb., 1772, I4> 63, 113; 
Sept., 1744, 22; Oct., 1754, Z3; March, 1756, Z7', Nov., 1769, 124-5. 
A like case occurred in the council May 8, 1706. 

''Jour, of Burg., Feb., 1745, 58 ^Ibid., Sept., 1744, 38. 



90 THE LEGISLATURE OF PROVINCE OF VIRGINIA [252 

was considered sufficient submission and, upon paying the 
costs, Doncastle was discharged/ 

Another illustration is seen in the case of John Ruffin. 
Ruffin publicly declared that William Clinch, a burgess, 
owed him a debt, and having appointed a day for the 
settlement thereof, instead of paying it, got him into a 
small room, shut the door, cocked a loaded pistol, and 
compelled him to sign a discharge of the debt. For the 
circulation of this report Ruffin was ordered before the 
bar of the house to answer for the offense of slander. He 
appeared and declared that he could prove the truth of his 
statements; he was liberated so that he might get wit- 
nesses. A little later Clinch informed the committee that 
the important witnesses needed for his defense could not 
then be present and had the case postponed until the next 
session." It was postponed a second time, but finally the 
committee decided that Ruffin had proved his charges, and 
was not guilty of slander or breach of privilege. He was 
thereupon discharged,^ and Clinch was expelled. 

In another case Leonard Claiborne was charged with 
slandering both the members from one of the counties. It 
was charged that Claiborne accused one member of fail- 
ing to pay his debts, and the other of misconducting him- 
self in the assembly, and because of this misconduct Clai- 
borne had threatened to take him by the nose. Claiborne 
did not appear to prove the charges, and the committee de- 

^Joiir. of Burg., Nov., 1753, 51, 56. 

^Clinch said one of his witnesses had gone to Georgia, another lived 
in Carolina, and a third had broken his collar-bone and could not at- 
tend. It soon became clear that he did not want the case heard on its 
merits. This seems to be the same Clinch who had been indicted before 
the general court; see pages 87-88; Jour, of Burg., Mar., 1756, 16, 12, 
25; April, 1757, II, 30-1. 

^ Jour, of Burg., 1757, 31; Va. Mag. of Hist., viii, 257. Clinch was 
expelled and forever disqualified to be a burgess. 



253] ORGANIZATION AND PROCEDURE gj 

dared that he had made the charges and that therefore 
he was guilty of breach of the right and privilege of the 
house, " by reflecting upon the whole house in general, and 
some of the members in particular." He was ordered into 
custody/ An assault on or abuse of a member of the family 
of a burgess, or an assault upon his servant, was regarded 
as a breach of privilege and the guilty party was brought 
before the house, reprimanded and made to pay the costs." 
In May, 1742, during an election contest the sitting member 
offered to pay all expenses of the contest already incurred 
if the contest were withdrawn, before any investigation 
could take place. The house declared this to be an infringe- 
ment of the liberty of the people, a misdemeanor, and a 
breach of privilege of the house. For this breach of privi- 
lege the sitting member's election was declared void and a 
new election was ordered.^ Interfering with an election 
of burgesses was also declared to be a breach of privilege.* 

From these and many similar cases it is clear that the 
house took much care not only to defend its members, but 
to protect its own good name. To allow an innocent mem- 
ber to be slandered without protest would have invited 
wholesale abuse and a consequent discrediting of the house 
itself. 

Punishment of burgesses was largely under the control 
of the house. The preceding discussion shows that the 
burgesses were protected to a large degree from other 
individuals and from other branches of government; i. e., 
from persons and powers outside the house itself. But it 

^Jour. of Burg., May, 1757, 72-81. Another case is found in Jour, 
of Burg., Mar., 1756, 49ff ; the case of Doncastle for using abusive 
language has been given, pp. 89-90. 

"^Jour. of Burg., May, 1740, zz; Feb., 1745, 103; Nov., 1753, 29. 

^Ibid., May, 1742, 57. 

*Ibid., March, 1756, 16-7, 57, 60; April, 1757, 12, 44-5. 



92 THE LEGISLATURE OF PROVINCE OF VIRGINIA [254 

does not follow that the offenses protected by privilege 
went entirely unpunished. On the contrary the house was 
usually cjuite ready to punish offending members. Of the 
penalties the house might inflict on its own members, one 
of the mildest seems to have been censure, coupled with a 
forced apology.^ Other penalties were fines, suspension, 
expulsion and forfeiture of seat. 

A fine was a very common penalty for lesser offences. 
The assembly of 163 1-2 ordered that all members of the 
assembly should attend divine services in the usual place of 
meeting one hour after sunrise ; that failure to do so should 
involve a fine of one shilling; that absence from the as- 
sembly should incur a fine of 2 s. 6 d. After the applica- 
tion of these penalties if any one neglected his duties, he 
was " to be fined by the whole bodie of the assembly." ^ 
The series of rules adopted in 1658 made unexcused ab- 
sence, drunkenness, interruption of a debater, and per- 
sonalities, punishable by fine.^ The next year, to prevent 
a thing which had greatly hindered public business, the 
assembly enacted that members who failed to attend at 
the beginning of the session were to be fined 300 pounds of 
tobacco for every day's absence unless excused by the as- 
sembly.^ This was re-enacted in 166 1-2.'' The same as- 

^ Campbell, Charles, Hist, of Col. Va., 228; Cooke, op. cit., 203. In 
1654, Wm. Hatcher, a burgess, having falsely slandered Col. Hill (prob- 
ably speaker) , was censured and forced to make acknowledgment of 
his error before Hill and the assembly. See also Jour, of Burg., Feb., 
I745i 33> 46, 57, which states that Samuel Blackwell and Peter Presly, 
burgesses, were reprimanded by the speaker for their conduct as justices 
of the peace in their county. Other justices not burgesses were sent for 
to receive reprimand. Soon after Presly was given leave of absence for 
his health. 

■^See Robinson MSS., 93; Hening, op. cit., i, 162. Some persons 
were fined for contempt of the government in 1652, but there is no cer- 
tainty that any burgess was among the number. 

''Hen., i,5o8. ^Ibid.,S2,^. ^ Ibid., n, 107; Session Laws, \66i,so-Si. 



255] ORGANIZATION AND PROCEDURE 03 

sembly, instead of being dissolved in the usual way re- 
solved to continue itself through another session and ad- 
journed to another time. To prevent a loss of members, 
before adjournment the assembly enacted that under 
penalty of 10,000 pounds of tobacco for disobedience, no 
burgess should accept the office of councilor or sheriff and 
thus interfere with his duties as a burgess.^ The assembly 
of September, 1663, declared that any member who was 
absent at the third drum on Monday morning should be 
fined one hogshead of tobacco." The rules of this assembly 
provided fines for the several offences as follows : absence 
on roll-call, 20 pounds of tobacco; intoxication, 100 pounds 
for the first offence, 300 pounds for the second, and 1000 
pounds for the third; interrupting a member while speak- 
ing, 1000 pounds; the use of personalities between mem- 
bers, 500 pounds; speaking more than once, 20 pounds; 
" piping it " in the house during the session, 20 pounds. 
Every Saturday afternoon the house was to dispose of the 
fines collected for infraction of the rules. ^ Those for the 
week ending October 27, 1664, amounted to 460 pounds of 
tobacco, of which the house voted one half " to use of the 
house," one fourth to the collector, and one fourth to Major 
Hone on account.* This shows that fines were actually 
levied and collected. 

The eighteenth century shows few records of the imposi- 
tion of fines upon members. Occasionally, however, absentee- 
ism became so troublesome that unexcused absentees were 
arrested by the officers of the burgesses and brought into 
the house. ^ If they could not then give an acceptable ex- 
cuse they were fined. In February, 1754, several members 

^Hening, op. cit., i, 540-1. ^Ibid., ii, 205. 

'^Ibid., ii, 206-7. ^Ibid., 253. 

^Jour. of Burg., March, 1756, 56; Palmer, Cal. of St. Pap., i, 58. 



94 THE LEGISLATURE OF PROVINCE OF VIRGINIA [256 

were arrested and fined for being absent at the preceding 
session/ 

A burgess might forfeit his seat by accepting either in 
person or by deputy any other office. If after accepting 
another office he should continue to sit as a member he 
was fined fifty pounds lawful money. However, the dis- 
qualification was not permanent and he might again at a 
later time be elected and lawfully sit.- In 1700 two bur- 
gesses who refused to take the oaths forfeited their seats 
and others were chosen to fill the places.^ Suspension was 
occasionally resorted to in order to force a member to 
submission."^ 

Punishment of members sometimes extended as far as 
expulsion. In connection with qualifications the cases of 
John Hammond and James Pyland of Isle of Wight 
county, have already been referred to .^ In 1723 two 
members " for having had the generosity to serve without 
pay " were expelled. They were considered to be bribers 
for they had tried to get votes by promising to take no 
pay.*' 

Expulsion and disqualification were also enforced 
against men of bad character. Two cases during the ses- 
sion of May, 1742, will illustrate this. One Henry Downs 
was charged with having helped to steal sheep ; it was said 
that he had once confessed this offense in open court, and 
had been punished therefor by fifteen lashes on the bare 
back, by being put into the stocks, and then by being sold 
into servitude for one year and nine months to pay fees. 

^ Jour, of Burg., Feb., 1754, 4, 7. ^Hening, iv, 292-3. 

^Palmer, op. cit., i, 80. Also case of John Porter, 1664. 

* For one instance see Hening, i, 7. ^See page 51. 

*Hildreth, op. cit., ii, 326; Chalmers, Hist, of the Revolt, ii, 71, says 
this occurred in 1715. 



257] ORGANIZATION AND PROCEDURE gc^ 

The house declared he was guilty, expelled him and dis- 
qualified him to sit in that assembly. The same penalty 
was applied to William Andrews, whom the committee de- 
clared guilt)'- of " many male and scandalous Practices, in 
the Office of Inspector." That he had been dismissed from 
the offices of inspector and justice was evidence of his 
guilt. ^ 

In these cases the persons seem to have been disqualified 
for that assembly only. But in 1764, a Mr. Proser was 
charged with having antedated deeds with the intent to 
prejudice the claims of others, and with various other 
fraudulent acts in that connection, and was expelled and 
disqualified forever to sit and vote as a burgess. Costs of 
the prosecution to the amount of 4776 pounds of tobacco 
were assessed on him." The case of William Clinch has 
been referred to.' In 1773 a burgess charged with pass- 
ing counterfeit money was arrested and brought to Wil- 
liamsburg to be tried before the general court."* This was 
a felony and the privilege of freedom from arrest did not 
apply. ^ But it was a case for the general court and the 
house did not need to act. 

^Jour. of Burg., May, 1742, 10, 11, 34, 56. 

^Ibid., Oct., 1764, 101-9. ^ Pages 87-88, 90. 

*Jour. of Burg., Mar., 1773, 11, 25-6. ^Page 87. 



CHAPTER V 

The House of Burgesses — Organization and Pro- 
cedure Continued 

Salaries of members and officers at first were not paid 
in a very regular way. Sometimes the burgess was paid 
by the county or parish which he represented/ sometimes 
by the colony as a whole; ~ sometimes he was paid in 
money, sometimes "in kind" (tobacco). Whether county 
or colony should pay depended upon the decision of each 
particular assembly. After September, 1756, except in 
1760 and possibly in 1762, the salary was regularly paid 
from the public treasury. In 1642, 1673 ^^^ probably in 
other cases the cost of servants of members was also paid.^ 

By an act of 1660-1, in order to keep candidates from 
promising to serve for small salaries, the allowance was 
fixed at 150 pounds of tobacco per day, besides travelhng 
expenses.* This act was renewed the fohowing year.^ But 

'By counties, probably in 1636 and 1639 {^Robinson MSS., 84, 188), 
1642, 1656, 1658 and 1671. In 1688 Henrico made appropriation to pay 
its burgesses' charges for twenty-eight days' service. This seems to in- 
dicate county payment for that session though Hening gives no session 
for that year. (See Va. Mag. of Hist., i, 177.) The assembly of 1730 
forced Caroline county to pay its burgesses for the session of 1727. 
(Hen., iv, 306.) Salaries of the assemblies of May and August, 1755, 
of 1756, and 1760 were paid by the counties; in 1762 they were to be 
paid by the county or colony as the case might be according to the 
"rules and regulations before said." (Hening, vi, 496-8, 557; vii, 57, 
366, 527.) They were paid by parishes in 1656 and 1659. 

"By colony, 1660-1, 1661-2, 1667, 1676, though it is not certain but 
that the burden was shifted to the counties in 1730, 1736, 1742, Oct., 
175s, and Sept., 1756, (See Hening at the dates given.) 

'Hening, i, 267; ii, 309-10. * Ibid., ii, 23. "^ Ibid., 106. 

96 [258 



259] ORGANIZATION AND PROCEDURE gy 

the assembly of 1677 declared that the charges of the bur- 
gesses were complained of as being too heavy ; ^ hence their 
salaries were reduced to 120 pounds of tobacco and cask per 
day, allowing two days each wa}^ for travelling. Extra allow- 
ance was made for horse and boat hire." Mileage was gen- 
erally allowed, sometimes as a part of salary, sometimes 
as expenses only. It might be paid at a rate of so much 
per mile or in a lump sum. In 1775 the rate was ferriage 
and four pence per mile both ways.^ But it seems probable 
that the more common way was to pay the regular salary of 
burgess for the days on the road as well as those of the 
actual session, and in addition to pay a part of the travel- 
ling expenses, such as boat and horse hire. In 1730 the 
assembly made a difference in the amount paid, those hav- 
ing come by land receiving ten shillings and those by water 
nine shillings per day. In the latter case the boat and the 
services of two boatmen were to be allowed for.* Some- 
times the assembly fixed the number of days in transit for 
which the members could be paid.^ 

In 1730 the assembly directed the treasurer to pay the 
burgesses in money whenever he could do so without de- 
pleting the treasury beyond a fixed minimum amount. 
After 1745 it was the custom to pay in money, though the., 
salary was sometimes stated in terms of tobacco. 

The actual amount of the salary at any period cannot 

'This complaint had been made in Bacon's rebellion. The commis- 
sion sent over by the king had recommended a reduction and the king 
had instructed Governor Berkeley accordingly. See Ancient Va. Re- 
cords, typewritten copy in Va. Hist. Soc. Lib., loi, 109. 

' Hening, op. cit., ii, 398-9. Those members of Bacon's assembly 
who had acted loyally since the rebellion were also paid. Ibid., ii, 403; 
iv, 279-80. 

^ Ibid., ix, 56. For other times at other terms see Hening, iv, 523; 
vii, 527. 

^Ibid., iv, 279-80. "Jour, of Burg., Nov., 1761, 27. 



^8 THE LEGISLATURE OF PROVINCE OF VIRGINIA [260 

be given with any certainty, for while the number of 
pounds of tobacco, or the number of shilHngs are frequently 
stated, the real value of both tobacco and shillings was 
very different at different times, and never the same as 
their value at present. Unless sick or excused the salary 
was forfeited for the time a member was absent from the 
house. ^ 

The salary of the speaker during the seventeenth century 
seems to have been not more than 6,000 pounds of tobacco 
annually." It also seems that in 1695 pay to the speaker 
as such, was discontinued and that the burgesses on sev- 
eral occasions after that resolved never again to make 
such an allowance. But in August, 1702, when the bur- 
gesses sent the book of claims up to the council for pas- 
sage, they had in it an item of 10,000 pounds of tobacco 
for the speaker. Harrison and Carter, councilors, ob- 
jected to this item. They said it had been discontinued 
and ought not to be revived. The council sustained this 
objection but Jennings, the secretary, asked that his dissent 
from the vote of the council be entered in the journal. One 
ground of objection to the claim was that such salary would 
make the tax burden too heavy on the people at that time.^ 
The governor called attention to the fact that pay had been 
allowed the preceding August, and said the burgesses were 
the proper judges of the merits and rewards of their 
own officers. He also showed the evils that would result 
from a contest over the matter. Nevertheless the coun- 
cil adhered to its position and amended the book of claims. 
The burgesses refused to accept the amendment. The 
council started an investigation of precedents but proposed 

^Jour. of Council as Upper House, n, May, 1722, 42. 

^Hening, op. cit., i, 424; ii, 38. 

^Jour. of Coun. as Upper House, i, 26-38 (for Aug., 1702). 



26l] ORGANIZATION AND PROCEDURE qq 

to refer the question to the Lords Commissioners of Trade 
and Plantations, in the meantime leaving out of the claims 
the pa}^ for the speaker. The governor informed the coun- 
cil that in passing the book of claims, " he demanded a 
privilege to sitt and vote as president of the council." He 
at last sent a message to the house saying he agreed with 
it but hoped for some amicable settlement. The speaker 
then said the conduct of the council was unprecedented 
and asked that the house declare its privilege, but omit 
the appropriation for this time. This was done. 

In spite of such incidents as this just related, it was gen- 
erally customary to pay the speaker a salary. How- 
ever, during the time the office was connected with that 
of treasurer the pay attached to the two offices was not 
separate. The speaker-treasurer then got five per cent of 
the money he handled.^ In 1766 the offices of speaker and 
treasurer were separated and the speaker, being supposed 
to give his time to the public service, was to receive 500 
pounds sterling annually. Three years later this was in- 
creased to 625 pounds current money." 

Other officers of the house seem to have been paid ac- 
cording to the length of the session, or to the amount of 
work to be done; for several pay rolls were passed differ- 
ing very much in the amount paid to each. Two cases 
will illustrate. In February, 1754, the house resolved to 
pay officers as follows : clerk of burgesses £60 ; clerk of the 
general assembly £30; chaplain £15; sergeant-at-arms £20; 
doorkeepers £5 each.^ In May, 1765, the house paid the 
clerk of the burgesses £250; clerk of the assembly £80; 
chaplain £60; sergeant-at-arms £80; doorkeepers £15 each; 

' Reply of Gov. Gooch to Lords of Trade, Va. Mag. of History , iii, 
123. 
^Hening, op. cit., viii, 210, 394. ^Jour. of Burg., Feb., 1754, 12. 



lOO THE LEGISLATURE OF PROVINCE OF VIRGINIA [262 

clerks of committees from £80 to £30/ These represent 
extremes. Pay rolls of other sessions show amounts be- 
tween these. 

In 1745 the sergeant-at-arms was allowed mileage of 
three pence per mile each way when he was sent to arrest 
persons; the arrested person must pay it.^ 

In one case at least an officer of the house took a pecu- 
liar, but apparently successful method of raising his salary. 
He was the clerk to the treasurer and he simply paid the 
addition to himself and put it in the accounts the same 
as the other part of his salary. When the house heard 
of this and was displeased, he sent in a formal petition 
and the house granted him £25 per year increase in his 
salary. " 

Methods of conducting business were in many respects 
not unlike those with which we are familiar at the present 
day. Yet there were essential differences and therefore a 
full account is necessary to show what was the actual course 
of procedure. 

It will be recalled that in the first assembly, 1619, each 
burgess was required to take an oath of office. In 1658 
this oath was as follows : 

You & every of you shall swear upon y® holy Evangelist & in 
y^ sight of God to deliver yo'^ opinions faithfully, justly & 
honestly according to yo^ best understanding & conscience for 
y* gennerall good & prosperity of this Country & every pticular 
member thereof. And do yo"^ utmost endeavor to prosecute 
that without mingling w^^ it any pticular Interest of any per- 
son or persons whatsoever, So helpe you God & the Contents 
of this Booke.* 

'^Jour. of Burg., May, 1765, 151. 

^Ibid., Feb., 1745, 53. ''Ibid., 1745, 115. 

''Ancient Virginia Records (MSS.) in Library of Cong. This taken 
from a typewritten copy, pp. 183-4, in Lib. of Va. Hist. Soc. 



263] ORGANIZATION AND PROCEDURE 



lOI 



In addition to this the oaths of allegiance and supremacy, 
required of all officials under English jurisdiction, was ad- 
ministered. These oaths are first mentioned in the Vir- 
ginia legislature in 1629 when it was administered to the 
governor, councilors, and burgesses before any business 
was transacted. 

The opening of a session of a new assembly was a very 
formal affair. A somewhat detailed account of the as- 
sembly of June, 1775, just before the flight of the governor, 
will show the method of procedure which had been de- 
veloped and was used during most of this time and in 
vogue at the close of the colonial period. 

When the election returns had been made and the time 
for meeting had arrived, the members elect assembled in 
the council chamber where, according to custom, the oath 
was administered to those whom the clerk of the burgesses 
had on his list as having been duly returned. The oath 
was administered by members of the council appointed for 
that purpose and was to be taken before the members could 
enter the house of burgesses. They then entered, took their 
seats, and were told by the clerk of the assem.bly that the 
governor commanded their immediate attendance in the 
council chamber. When they had obeyed the summons, 
the governor commanded them to return to their house im- 
mediately and elect a speaker. After the return, Henry 
Lee, a burgess, addressed the clerk ("who standing up, 
pointed to him, and then sat down,") and moved that 
Payton Randolph be speaker. Randolph was elected and 
" was taken out of his place by two members, who led 
him from thence to the chair; and having ascended the 
uppermost steps Mr. Randolph returned his thanks to the 
house for placing him again in that elevated station." 
After his speech was concluded he sat down in the chair 
and "then the mace (which before lay under the table) 



I02 THE LEGISLATURE OF PROVINCE OF VIRGINIA [264 

was laid upon the table." Henry Lee and the treasurer 
were then sent to notify the governor and to ask when 
they should attend on him to present their speaker. By a 
messenger of his own the governor directed them to at- 
tend him immediately in the council chamber. They did 
so and the governor expressed himself as satisfied with 
their choice. Thereupon the speaker in the name of and on 
behalf of the house, laid claim to all the ancient rights and 
privileges of members, particularly freedom of speech and 
debate, exemption from arrests and protection for estates ; 
and lastly, for himself, he requested that his errors might 
not be imputed to the house. The governor promised to 
defend them in all their just rights and privileges. When 
the burgesses had returned to their own house, the speaker 
reported the proceedings just finished and then read a 
speech the governor had sent to the house. It exhorted 
the burgesses to work in harmony with England in the 
settlement of the disputes then existing. 

The governor next sent to the house some papers which 
were delivered at the bar and then read. They were or- 
dered to lie on the table for the perusal of the members. 
The orders of the day were next taken up and a reply to 
the governor's speech was ordered to be prepared. A jour- 
nal of the first continental congress was brought before 
the house and ordered to lie on the table for the perusal 
of members until the Monday following when the house 
should resolve itself into the committee of the whole to 
consider the said journal. On that same day the pro- 
ceedings of the convention of March, 1775 were to be con- 
sidered also.^ 

The closing of sessions was much less formal. It might 

^The foregoing account is based on the record as printed in Arch. 
Amer., Ser. iv, vol. ii, 1185-8; Jour, of Burg., 1772, 2-5. 



265] ORGANIZATION AND PROCEDURE 103 

be by adjournment, either by recommendation of the gov- 
ernor or on the initiative of the house itself. It might be 
by prorogation, or by dissolution on order of the governor. 
As these points are to be discussed more fully in a later 
chapter, further mention of them here is unnecessary. 

Every legislative body must have some rules concerning 
attendance and conduct of members; also it must have 
rules of order. In the discussion of the punishments of 
members,^ reference to some of these rules has already 
been made. It is unnecessary therefore to state them in 
detail here. Suffice it to say that fines were imposed for 
absence, tardy attendance, drunkenness, interruption of a 
debator, personalities, and speaking more than once on the 
same question. In 1659 a set of rules w^as adopted which 
were, in substance, as follows : No one without first ob- 
taining leave should absent himself when any matter was 
being debated; each member was to keep good order and 
give attention to the proceedings; he should address him- 
self with due respect to the speaker and should rise and un- 
cover his head when he debated ; ^ private discourse should 
not take place while public matters were being discussed. 

To prevent absences a call of the house was resorted to. 
When the roll was called excuses could be made for ab- 
sent members but these excuses were not always accepted; 
when they were not accepted fines were charged against the 
member. 

The journal of burgesses for November, 1769, gives a 
long list of standing rules of order adopted by the house. 
In substance they are as follows : 

1. No member shall absent himself without leave or be- 
cause sick. 

2. When the house attends the governor in the council 

iPages 92-93. "^Jotir. of Burg., Nov., 1753, 77', Feb., 1754, 4- 



I04 THE LEGISLATURE OF PROVINCE OF VIRGINIA [266 

chamber, the several passages thereto shall be cleared of 
strangers so members miay freely pass; no member shall go 
into or come out of the council chamber before the speaker. 

3. No member shall chew tobacco in the house while the 
speaker is in the chair or while the house is in the com- 
mittee of the whole house. 

4. When any member is about to speak in debate or de- 
liver any matter to the house, he shall rise from his seat 
without advancing from thence, and shall with due re- 
spect, address himself to the speaker, confine himself 
strictly to the point in debate, avoid all indecent, disrespect- 
ful language. 

5. No member shall speak more than twice in the same 
debate without leave. 

6. A question once determined stands as the judgment 
of the house and cannot be drawn into question again dur- 
ing the same session. 

7. While the speaker is putting the question no private 
discourse, no standing up, walking into, out of, or across 
the house, or reading any printed book shall be allowed. 

8. No member shall vote on any question in which he 
is immediately interested, nor in any case where he was not 
present at the time the question was put by the speaker or 
chairman of the committee. 

9. Every member present when a question is put on a 
division must be counted on one side or another. 

10. Each day before proceeding to other business, the 
clerk must state the orders for taking any matter into 
consideration that day. 

11. Unless ordered otherwise by the house bills shall be 
read and dispatched in the order presented. 

12. The clerk shall not allow any papers or records to 
be taken from the table or from his possession by either 
a member or any other person. 



267] ORGANIZATION AND PROCEDURE iqc 

13. The speaker and 15 members shall be enough to ad- 
journ, 30 to call the house and send for absent members 
and 50 to proceed to business. 

14. When the house is to rise, every member shall keep 
his seat until the speaker has gone out, then each one is to 
follow in the order in which he sits. 

15. The journal of the house shall be drawn up daily 
by the clerk and after being approved by the speaker shall 
be printed without delay. 

16. Eleven of the committee of religion, and of privi- 
leges and elections, and five of any other committee shall 
be enough to proceed to business. 

17. No committee shall sit during time of divine service. 

18. Any member using bribery or other corrupt prac- 
tices to secure election shall be severely dealt with. 

19. Election contest petitions must be presented within 
14 days after the member petitioned against has taken his 
seat. 

20. No person entitled to vote for two members, and 
giving a single vote, can give his second vote during that 
election. 

21. When the house judges an election petition frivolous 
and vexatious, the house will order satisfaction made to 
the person petitioned against. 

22. Any member may waive his privilege in any matter 
of a private nature; but having done so he cannot resume 

it. 

23. Original writs to prevent suit being barred by 
statute of limitations may be sued out, or a bill in equity 
be filed against a member in spite of privilege, provided 
the clerk after having made out and signed such, shall not 
deliver the same during the continuance of privilege. 

24. Witnesses summoned before the house or its com- 
mittees are privileged from arrest coming and going; a 



I06 THE LEGISLATURE OF PROVINCE OF VIRGINIA [268 

witness can demand pay beforehand from the person by 
whom he is summoned and he is not obHged to attend until 
he gets it. 

25. Any person interfering^ with a witness or trying to 
influence his testimony shall be punished. 

26. No person shall be taken into custody of the ser- 
geant-at-arms on any complaint of breach of privilege un- 
til the matter of such complaint be examined by the com- 
mittee of privileges. 

27. Fees of the sergeant-at-arms for an arrest shall be 
13 shillings, and for every day he keeps the prisoner in 
custody 13 shillings; for sending a messenger to arrest on 
warrant of the speaker, 6 pence per mile going and com- 
ing and ferriage. 

In 1 63 1 was inaugurated the method of re-enacting all 
the laws the assembly wished to retain and then of re- 
pealing all others.^ It soon became the custom thus to 
revise the laws at intervals. In this way the statute books 
were prevented from becoming filled with numerous ob- 
solete laws. Sometimes the revision was made with the 
idea of stating the laws more clearly.^ 

Sometimes this work was referred to a committee.^ 
In 1685 the house proposed a joint committee of the two 
houses to revise the laws and report to the next assembly. 
The governor rejected this proposal and proposed in its 

^Hening, op. cit., i, 177; Robinson MSS., 97. 

^The assembly of 1643 said: " Whereas the many and sundry acts and 
laws at former Grand Assemblies established in several books and vol- 
umes digested have been found very prejudicial to the colony by the 
Grand Assembly, for reducing the same into a more exact method and 
order, and for preventing all mistakes or pretenses which may arise 
from this interpretation or ignorance of the laws in force," therefore 
all laws not re-enacted are repealed. Hening, i, 239-40. 

^ Ibid., ii, 34. 



269] ORGANIZATION AND PROCEDURE 107 

stead that the laws be considered by the council only and 
then be reported to the assembly/ This plan was re- 
jected by the burgesses. The burgesses renewed their pro- 
posal in 1693,- but probably with no better success. How- 
ever, in 1745 the council consented to a joint committee 
for the same purpose.^ Sometimes just the laws on some 
particular subject were referred to a committee for re- 
vision.^ It was customary for the house to instruct its 
standing committee on courts of justice to report on mat- 
ters unsettled from previous sessions, what laws have or 
are about to expire and ought to be renewed, and to act as 
a kind of permanent revisory committee.^ 

These revised acts, like new acts, had to be submitted to 
the king for his approval. In 1748 the king refused to 
ratify a part of the revised acts and they failed; but since 
all old laws not reenacted were repealed, there was then 
no law on those subjects. It would therefore seem that the 
colony might have been better off if it had let the old laws 
remain instead of revising them. 

In the early part of the colonial period there are few 
references to committees of the house, yet it seems probable 
that the house made frequent use of them. Even in 16 19 
several committees were appointed, and as it was a much- 
used method later, it is probable that the absence of refer- 
ence to them is due to incompleteness of the records rather 
than to a lack of committees. 

The purposes for which committees were appointed were 

Wour. of Coun. as Upper House, i, 54-5. Hening gives no laws for 
1685, though he refers to such a session. (Hen., iii, 40.) The council 
journal does not indicate the outcome of the difference of opinion on 
revision, but there probably was no revision again before 1705. 

^Jour. of Burg., March, 1693, 21. 

^Jour. of Coun. as Upper House, ii, 61. 

^Jour. of Burg., Sep., 1742, 20. ^Ibid., Feb., 1752, 7. 



Io8 THE LEGISLATURE OF PROVINCE OF VIRGINIA [270 

sometimes of sufficient importance to secure a record of 
the committee. For example in 1 660-1 the assembly ap- 
pointed committees to act during the recess of the assembly, 
one to prepare an address to the king, another to revise 
the laws/ In 1664 a committee was appointed to ex- 
amine the public records and arrange for their preserva- 
tion.^ Reference has already been made to committees 
for revision of the laws.^ 

After the two houses definitely separated, about 1680, 
references to committees are much more frequent. A regu- 
lar system of standing committees appears; also many 
special committees and much use of the committee of the 
whole. 

In the committee of the whole the method of procedure 
was as follows : the speaker left the chair and some mem- 
ber of the house took the position of chairman of the com- 
mittee of the whole house. The informal discussioix then 
took place and when the committee rose the speaker re- 
occupied the chair. The member who had acted as chair- 
man of the committee reported the proceedings of the 
committee, read any resolutions that might have been 
passed, and then delivered them at the clerk's table. There 
they were again read. Another reading was required be- 
fore they could be adopted by the house. Matters were 
frequently referred to the committee of the whole. 

The house made much use of special committees for 
many different purposes, but especially for preparing bills 
to be introduced on matters that had been called to the 
attention of the house, and in the later years for confer- 
ences between the two houses. 

The greater portion of the committee work was done by 

'Hening, ii, 31, 34. ^ Ibid., ii, 210-11. 

^ Pages 106-107. 



271] ORGANIZATION AND PROCEDURE iqq 

the regular standing committees. The house usually had 
several of these, each with its own clerk, such as for pro- 
positions and grievances, for privileges and elections, for 
public claims, for courts of justice, for trade, for private 
causes, and for religion and morals. Later there was a 
committee of correspondence to deal with the agent of the 
house in London. The size of these committees varied, 
but by 1772 they were composed of from fourteen to thirtv- 
two members each.^ The records are very precise in telling- 
just how reports were made. A member of the commit- 
tee standing in his place read the report and then handed 
it to the clerk." Committees had power to send for persons, 
witnesses, papers, and records.^ It is probable that the 
committees were named by the house itself.* In the Ran- 
dolph Papers (III, 76-7, 80-5, etc.) are some committee 
records. They resemble regular legislative journals and 
show how the committees did their work. 

The daily sittings of the house usually began with prayers 
by the chaplain at 9 or 10 o'clock, and the business an hour 
later. In the summer of 1771, the prayers began at 8 and 
the business at 9 a. m. The object of this was probably to 
get most of the work done before the heat of the day came 
on. The sittings lasted several hours. 

The process of law-making was about as follows : ° a 
bill was introduced, sometimes in answer to a petition, 
sometimes by direct order of the house, sometimes by the 
direct request of some member, or by resolution of a com- 

^Jour. of Burg., 1772, 7-9; Oct., 1755, 5-6. 

^Jour. of Burg., 1772, 12. ^ Ibid., Sept., 1744, 4. 

^Ibid., Oct., 1764, 6-8, says: ''Ordered, That a committee of Privi- 
lege and Elections be appointed, of the following persons," and then 
names the persons. 

^ Taken from the journals of the two houses. 



no THE LEGISLATURE OF PROVINCE OF VIRGINIA [272 

mittee. It was probably not the custom to refer all bills 
to standing committees as is the present rule in Congress, 
though this was sometimes clone, especially when the meas- 
ure was of a character suited to one of the standing com- 
mittees. As a rule, however, most measures were not in- 
troduced in the form of bills but rather as petitions, resolu- 
tions, etc., and these were referred to interested persons 
or committees to formulate into bills. 

Bills were read twice, then referred to committees for 
amendments or amended in the house, or engrossed, read 
again and passed or rejected, (though they might be rejected 
at any reading by being refused passage to the next reading) 
then sent to the council by a member or a committee usually 
composed of members interested in securing the passage 
of the bill. The council went through a very similar 
action and, unless it rejected or refused to act on the bill, 
returned it to the house. If any amendment had been 
made the house considered the bill again and, if it con- 
curred .in the change, passed it. When a bill had been 
enrolled and approved by the council, it was ready for the 
signature of the governor, which was given in the presence 
of both houses in the council chamber. However, if the 
house refused to concur in the amendment, it sent a mes- 
sage to the council to that effect and sometimes asked for 
a conference, though this was sometimes left for the coun- 
cil to do. A quotation from the records will show some of 
the forms of doing business. 

The Order of the Day being read, for the second reading of 
the Bill for appointing an Agent ; ' ' 

The said Bill was read a second Time. 

Resolved that the Bill be committed to a committee of the 
whole house. 

Resolved, That this House will, upon Friday next, resolve 
itself into a Committee of the whole House upon the said Bill. 



273] ORGANIZATION AND PROCEDURE 



III 



Occasionally orders of the day were made by fixing a 
day for second or third reading of some bill; e. g. March 
17, 1772, it was ordered that a bill be engrossed and 
printed and that the third reading be on July i, next, over 
three months distant/ 

In case of a division on a vote, it was the custom for one 
side to go out of the room; e. g. in September, 1744, a 
division caused the " noes [to] go forth " and resulted 
" noes 8, yeas 45." ^ Sometimes a ballot was called for, 
as in choosing one doorkeeper from several candidates. 
The clerk passed around " a glass " and each member put 
in a ballot with the name of the person voted for written 
thereon. The glass was then brought to the clerk's desk 
and a committee of six counted the ballots." 

The quorum required to do business varied. In 1685 
twenty-three burgesses met and said that since they were 
neither a house nor had a speaker, they could not even ad- 
journ, but must wait for the governor to prorogue them.* 
In October, 1748, the house decided by a vote of 44 to 35, 
that 41 should be a house to do business.^ A few years 
later twenty-five were declared enough,*^ but in 1769 the 
number was much larger. 

It was a common thing to combine two or more totally 
different subjects in one bill; e. g. one bill was passed to 
prevent hogs and goats running at large in the streets of 

^Jour. of Burg., 1772, 96. It is probable that they expected to 
adjourn to meet again about the beginning of the next July. Toward 
the end of the same session several other matters were postponed in the 
same way. Jour . of Coun . , May, 1744, 24fif. 

^Ibid., 18; other cases Jotfr. of Burg., Feb., 1752, 64, 119, etc. 

^Ibid., 1772, 5. 

^ Jour, of Coun. as Upper House, Oct., 1685, 2-3. 

'^Jour. of Burg., Oct., 1748, 4-5. ^Ibid., Mar., 1756, 74. 



112 THE LEGISLATURE OF PROVINCE OF VIRGINIA [274 

Suffolk, and to give the town permission to hold a fair/ 
The " rider " was sometimes used, both to make an addi- 
tion to an engrossed bill and so avoid the going over of the 
whole process of enactment again, ^ and, as at the present 
time, to carry clauses which could not pass if voted on 
separately. In the latter class was the bill appropriating 
£2500 to pay an agent of the assembly in England and 
attaching it to an appropriation of £20,000 to carry on war. 
The council protested against the appropriation for the 
agent, ^ but inasmuch as the agent was finally sent and 
was paid the house had its way. 

Thus did the house carry on its business. Early in the 
colonial period, then, we find many present-day practices 
already established. Those of the earlier time were extended 
and others to suit new conditions were added, the process 
continuing down to the revolution. Indeed, that the meth- 
ods of doing business should be similar to present-day prac- 
tices is to be expected when we remember that the legis- 
lature consciously tried to imitate so far as applicable the 
procedure of the English House of Commons, and that that 
body had already developed the essentials of present-day 
practice, (save that growing out of the cabinet system,) 
when the colonial assemblies were just coming into exist- 
ence. This was especially true in such things as the open- 
ing and closing of parliament, rules of conduct of mem- 
bers, and the process of law-making. 

^Jour.ofCotm. as Upper House, Oct., 1748, 27. Spotswood rejected 
a bill of that kind. Letters, ii, 54. 
"^Jour. of Burg., Aug., 1755, 18; Nov., 1762, 88. 
^Ibid., Aug., 1754, 18. 



CHAPTER Vr 
The Governor as a Part of the Legislature 

In all countries where there is a legislature distinct from 
the executive, the executive has a greater or lesser part 
in legislation. How great that part is depends upon 
the country and the age. As a rule, the organization of 
the executive has preceded the organization of the legis- 
lature, and usually it is true that the executive has granted 
the powers which the legislature has possessed. 

In the American colonies we find a few exceptions to 
this general statement. It was not true in the New 
England colonies, for there the executive and the legisla- 
ture were organized at the same time and got their power 
from the same source, the people. Virginia was a partial 
exception, for when it was under the control of the Com- 
pany that body created both executive and legislature. 
The chief executive, the governor, was a kind of overseer 
of the estate. Yet under the instructions from the com- 
pany he had a more direct part in legislation than did the 
New England governor who was chosen by the people.^ 

When the royal authority was established in Virginia 
there was for a time no legislature, and the whole govern- 
ment was in the hands of the governor and other officials 
appointed by the king. Some years later the legislature 
was re-established, but its powers came as grants from 
the executive of the home government through the gov- 

^ Osgood, American Colonies in the Seventeenth Century, i, 162-3. 
275] 113 



114 THE LEGISLATURE OF PROVINCE OF VIRGINIA [276 

ernor of the colony. Naturally then the governor was an 
important factor in the organization of the legislature. 

The fact is that the executive often by its own needs as 
well as by the needs of the people, was forced to call upon 
the people through a legislature to aid in the conducting of 
government. Professor Osgood has well said : " Like all 
their other organs of government, the legislatures of the 
provinces developed as the result of social and political 
causes operating upon the proprietors and in the provinces 
themselves. Though not original in the sense in which 
the executive was, events soon showed them to be instru- 
ments of government which were indispensable to pro- 
prietors as well as provincials, and about their develop- 
ment center events of the greatest interest in the history 
of the provinces. Their study reveals the operation of 
forces which were to transform the fief and thus to open 
the way for the growth of modern democratic institu- 
tions. The rise of assemblies in the English-American 
colonies is an event of great significance in the history of 
the world." ^ While Professor Osgood states this as ap- 
plying to the proprietary province, it applies equally well 
to the royal province, for it was the needs of the situation 
that everywhere induced the executive to authorize a legis- 
lature and give it an important part in the government. 

The development of legislatures was no less important 
in the royal than in the proprietary provinces, and 
one of the most interesting as well as important features 
was the struggle between the legislature and the executive 
as represented by the governor to get or to keep a controlling 
place in the government. Among English-speaking peo- 
ples in modern times the general tendency has been to 
lessen executive influence in legislation and strictly to de- 

^ Osgood, op. cit., ii, 74-5. 



277] -^^^ GOVERNOR AND THE LEGISLATURE nc 

fine the power that is left to the executive. Virginia during 
colonial times was engaged in the process of limiting and 
defining executive power. When the revolution came she 
was so far advanced in this that the first governor of Vir- 
ginia under a state constitution was almost without power. 
He was a mere tool in the hands of the legislature. It will 
be the purpose of this chapter then briefly to indicate (i) 
the part which the governor of colonial Virginia took in the 
legislature, what he did and how; (2) how this part was 
modified, limited and defined from time to time. 

In the period during which a unicameral legislature ex- 
isted the burgesses, council and governor all met as one 
legislative body. Although in some respects the governor 
was the most conspicuous member of the assembly, he was 
not, as in Massachusetts, the presiding ofiicer. From the 
beginning the assembly had a speaker. As we have seen, 
in the assembly of 16 19 the speaker was the colony secre- 
tary; hence he was probably a member of the council.^ 
Whether this is true or not, it is very certain that in the 
many assemblies that followed the speaker was always a 
burgess. Since the governor did not preside, and had no 
place of special importance, it maj^ seem fair to conclude 
therefore that the governor as a member of the assembly 
was in about the same position as other members, save that 
being governor he had a veto on measures finally passed 
and consequently had more personal influence. The real 
part which the governor had depended much on his instruc- 
tions, but even more upon the personality of the man. 

So far as the records of the early colonial period show, 
the part of the governor as a legislator stands out 
much less prominently than his judicial and administra- 
tive functions. Such information as they give deals largely 

^ See page 20. 



Il6 THE LEGISLATURE OF PROVINCE OF VIRGINIA [278 

with the external and formal things, such as calling, proro- 
guing, and dissolving the assembly, vetoing acts, etc. 
From the amount of attention given him in the records 
then it would seem fair to assume that as an individual 
the governor was less prominent in legislation than in 
other lines. 

In spite of this conclusion from the records, however, 
during the unicameral period the governors were quite 
generally the dominant force in the government, even the 
legislature being quite docile at most times. This was 
noticeably the case in Sir William Berkeley's administra- 
tions, 1642-1652, and 1660-1677. On the other hand dur- 
ing the commonwealth period the governor was chosen by 
the assembly and was subject to removal by that body, and 
was, therefore, controlled by the assembly. Nevertheless, 
even in the beginning the Virginia assembl}^ did not meekly 
submit to the governor in all cases, but showed much in- 
dependence. The case of Governor Harvey will be re- 
called. For several reasons, one of which was a refusal of 
the governor to transmit protests of the assembly on the 
tobacco question, the council deposed him and elected John 
West to act as governor until the " king's pleasure " should 
be known. The king resented this action and sent Harvey 
back to govern the colony.^ This act was the act of the 
council, but it was approved by the burgesses, and when 
the council called a new assembly and Harvey forbade it 
to proceed, the prohibition was ignored." Thus both the 
burgesses and councilors took part in this revolt. The 
council sent Harvey to England along with the persons to 
present charges against him and to defend the action of 

'Doyle, op. cit., i, 198. 

' Fiz. Mag. of Hist., i, 422. For documents of the Harvey episode 
see letters in Mac Donald Pap., i, 165, 205. 



279] THE GOVERNOR AND THE LEGISLATURE n-r 

the assembly. That the Virginians did not intend to as- 
sume the power of deposing and electing governors as a 
right, is indicated by the fact that they chose West to act 
only until the king's pleasure should be known. The sur- 
render of the colony government to the commission sent 
by parliament in spite of Governor Berkeley's protest, the 
subordinate place of the governor during the Common- 
wealth, and events during Bacon's rebellion furnish other 
examples of this spirit of independence. 

The above seems to briefly describe the situation until 
after the recall of Governor Berkeley (1677) and the 
establishment of a two-chambered legislature, when the 
governor as a member of the upper house began to 
take a more prominent place in the records. By that 
time also the legislature had g-athered sufficient strength 
to enter into contests on numerous questions against the 
governors and their instructions. These facts, along with 
a series of rather aggressive governors, gave new import- 
ance to the relations between the executive and the legis- 
lature. With the further development of the legislature 
during the eighteenth century came more numerous at- 
tempts to define and limit the part of the executive in legis- 
lating. These attempts culminated in the revolution. 
Some of the principal relations between the executive and 
legislature will be seen in the remaining pages of this 
chapter. 

Before 1680 there had been much complaint against gov- 
ernors, and particularly against absentee governors. One 
of the provisions that was to have been in the proposed 
charter of 1676, which was almost to the point of being is- 
sued, was this, that the governor, council, and other officers 
should reside in Virginia. News of Bacon's rebellion 
reached England just in time to prevent the final steps in 
securing the charter and thus the movement against ab- 



Il8 THE LEGISLATURE OF PROVINCE OF VIRGINIA [280 

sentee governors failed. In fact absentee governors were 
more numerous after than before 1676. 

Except during the Commonwealth period and in the ab- 
sence of a governor, neither branch of the legislature had 
any control over the appointment of the governor; but the 
conduct of the legislature or either branch of it might, and 
sometimes did, influence the length of his term. In fact 
in the latter part of the seventeenth century the council 
was successful in driving more than one governor from 
office.^ When we remember that the English government 
frequently considered not fitness but favoritism in its ap- 
pointments, it is little to be wondered at that there was 
friction. For example the Earl of Orkney was governor 
from 1704 to 1737 without ever going to Virginia, and 
" enjoyed a considerable revenue without performing one 
act of government." ^ He was represented by a lieutenant 
or deputy governor. Most of these were interested chiefly 
in making money for themselves, in strengthening the 
crown and in promoting their own interests. While it must 
be said that the council was as a rule in harmony with the 
governors, there were nearly always a few, sometimes 
a majority, who were opposed to the governor. Doubtless 
the councilors, like the governors, were sometimes moved 
by purely selfish motives, but at other times they were 
truly loyal to the welfare of Virginia. 

An important way in which the governor influenced the 
legislature was in his power over the meeting, proroga- 
tion, and dissolution of the assembly. The power to call 
together the legislature was considered a privilege of the 
governor throughout the colonial period, but at times, as in 

^Chalmers, Hist, of Revolt of Am. Col., i, 318-19; Spotswood 
Letters, ii, 284-5. Nicholson, Spotswood, etc., were thus treated. 
* Chalmers, Hist, of Revolt of Col., i, 394. 



28l] THE GOVERNOR AND THE LEGISLATURE hq 

1659,^ the assembly directly authorized him to do so. 
In the time of Governor Harvey an assembly was 
called " on the petition of many inhabitants," to receive 
complaints against the governor.^ Hening seems to 
suggest that the council called it, possibly in response to 
a petition. In the absence of the governor, the presi- 
dent of the council and his associates called meetings. Oc- 
casionally the assembly adjourned itself to meet at a specific 
time. As for instance in October, 1760, the governor of- 
fered to let the burgesses decide when was the most 
convenient time for them to enter upon the regular busi- 
ness of the country.^ Occasionally the house adjourned it- 
self for several days without agreement with the council. 
As a rule however the governor continued to call assemblies 
until 1775, when, because of the repeated prorogations, it 
was found necessary to call a convention independent of 
the governor.* 

In closing sessions three methods were used. They 
might be prorogued by the governor. This method was 
used if the governor intended to call the same assembly in 
another session. If the governor contemplated no other 
session of that assembly he dissolved it. A third method 
was adjournment by the assembly itself. A brief account 
of how these methods were used in closing sessions will 
now be given. 

After 1645, possibly before, it was a very common thing 
for the assembly to be prorogued by the governor, though 
it frequently adjourned itself.^ The governor's right to 

1 Hening, op. cit., i, 49,5, 517; ii, I79- '^Ibid., i, 223; Howe, 58. 
^Jour. of Burg., 1760, 6. "Arch. Am., Series iv, vol. iii, 395- 

^The records of 1642, 1647, 1648-9, 1658, 1660-1, 1661-2, 1662, 1663, 
1666, 1667, 1676, etc., show the house to have adjourned itself. 



I20 THE LEGISLATURE OF PROVINCE OF VIRGINIA [282 

dissolve the assembly was disputed in 1658 when the as- 
sembly arrogated to itself the entire authority of the gov- 
vernment. On April i of that year the governor and 
council declared that " for many important causes " the 
assembly was dissolved. To this the house through its 
speaker replied that there was no precedent for such a 
declaration, and that the attempt to dissolve the assembly 
was illegal. The house, therefore, asked that the order of 
dissolution be revoked, and voted that if any member left 
the house, he should be censured as betraying the trust re- 
posed in him by the country. It was declared that all 
should remain and act as a whole and entire house. A 
special oath of secrecy, binding the members not to divulge 
any of the words or actions of fellow members, was then 
administered to each one. Upon promise of a speedy con- 
clusion of the business of the assembly, the governor and 
council -expressed themselves as being willing to refer the 
matter in dispute to Cromwell. The house was not satis- 
fied and asked for a revocation of the order of dissolution. 

The revocation was issued, but with the express in- 
tention of referring the dispute to Cromiwell. Still dis- 
satisfied, the house appointed a committee to draw up a 
vindication of the assembly. The committee reported that 
by the records it found " the present power of government 
to reside in such persons as shall be empowered by the 
burgesses (the representatives of the people) who are not 
dissolvable by any power now extant in Virginia, but the 
House of Burgesses." The committee recommended that 
the same governor remain in office, but that a new council 
be chosen. The report was adopted, and all former elec- 
tions of governor and council which were still in effect 
were declared void. Colonel Samuel Matthews was re- 
elected governor. It was declared that a new council, 
consisting of persons to be " nominated and confirmed by 



283] THE GOVERNOR AND THE LEGISLATURE 121 

the present burgesses convened (with the advice of th'i 
Governor)" should be chosen. Most of tlie old councilors 
were re-elected. To enable the burgesses to carry their 
point the sheriff of James City was ordered to obey no war- 
rant unless signed by the speaker. In seeking for " pre- 
cedent " it seems the committee did not go farther back 
than to the surrender to the Commonwealth in 1652. They 
based their claim to complete control on the agreement with 
the Parliamentary commissioners.^ This all grew out of 
the dispute over the power of dissolution, and for the 
time being the assembly was completely victorious. The 
next year the right to dissolve the burgesses except on 
the consent of the major portion of the house was denied 
to the governor.^ This represents pretty truly the situ- 
ation during the Commonwealth and early restoration 
period, but sometime after the restoration of the Stuarts, 
the power to dissolve the assembly was restored to the gov- 
ernor,^ and he continued to have this power and to use it till 
July, 1775, when the convention no longer recognizing the 
governor resumed the power to adjourn itself.* 

After 1700 new assemblies were not frequently called. 
Instead, several meetings of the same assembly were held 
by prorogation from session to session, thus depriving the 
people of frequent opportunities of choosing new repre- 
sentatives and so, often, causing much dissatisfaction." 

The governor frequently dissolved an assembly if it pro- 
tested against the acts of the king or of the governor. 

^Hening, op. cit., i, 499-505; Campbell, Charles, op. cit., 238; Hil- 
dreth, op. cit., i, 364-5. 

^Hening, i, 531; Hildreth, i, 366; Howe, op. cit., 67. 

•'See records in Hening, ii. 

* Nevertheless the assembly occasionally adjourned itself notwithstand- 
ing the above general rule. 

^Campbell, Charles, 412. 



122 THE LEGISLATURE OF PROVINCE OF VIRGINIA [284 

Thus Spotswood first prorogued and then dissolved an as- 
sembly for perversity in refusing to tax the people for 
defensive purposes save in its own way. Governor Din- 
widdie dissolved one assembly for factiousness, and, in • 
1774 Governor Dunmore another, for passing resolutions 
against the Boston Port Bill. 

Occasionally an assembly was dissolved by direct order 
of the king or of the lords of trade. This happened when 
the assembly was in opposition to the English government.^ 
Occasionally the prorogation came in the form of a com- 
mand from the governor to the assembly to adjourn itself 
to a certain day named by him.^ Then the question arose 
if in the case of such an adjournment the governor could 
prorogue again or dissolve that assembly without a meet- 
ing? Spotswood and the council disagreed on the mat- 
ter and it was referred to England for answer.^ Attorney 
General West in passing on another case, May 27, 1719, 
decided that the governor had power to act in such cases. '^ 

The foregoing is a statement of the practice in the mat- 
ter of calling and ending meetings of the assembly, and 
some of the cases of dispute about it. With the power in 
his hands, it must be evident that the governor might have 
much control over the work of legislation and even pre- 
vent legislation. Naturally then, even when he did not 
attempt to direct legislation as far as his power would 
have permitted, the knowledge of its existence must have 
had much influence on the legislators. 

x^Lnother way in which the governor exercised legisla- 

^ Dinwiddie Papers , i, 161. 

"^Jour. of Coun. as Upper House, iii, Oct., 1748, 46; Jan., 1764, 13; 
Jour, of Burg., Oct., 1754, 60; Oct., 1760, 21; Nov., 1769, 136. 
^ Spotswood Letters , ii, 289-90. 

^Chalmers, Col. Opinions, 238. This was a West India case, but had 
general application. 



285] T^^ GOVERNOR AND THE LEGISLATURE 123 

tive power was by the use of the veto. Although he al- 
ways possessed the veto power, it must be remembered that 
in the use of this part of his prerogative the governor was 
guided in a general way by the instructions which he re- 
ceived from the home government. In some cases the in- 
structions had special reference to some particular act or 
class of acts; but often they were very general in char- 
acter and thus left the governor much discretion as to the 
use of the veto. 

Before 1685 there seems to have been little dispute over 
the question of veto. It seems to have been exercised spar- 
ingly but the privilege had not disappeared. Naturally the 
more influence the governor had in the assembly the less 
need there was for the use of the veto power. This prob- 
ably accounts for the little prominence given to the veto 
under the unicameral legislature. But in 1685 the as- 
sembly questioned the veto power of the governor. The 
dispute arose in this way. When Lord Culpeper was sent 
out as governor in 1682, he was given instructions that al- 
most deprived the assembly of any real power. Laws were 
not to be proposed by the assembly, but were to be framed 
by the governor and council, endorsed or modified by the 
crown, and then sent to the assembly to be enacted into 
laws. Many other things in the instructions were equally 
distasteful to the Virginians. So that although Culpeper did 
not enforce all of these instructions, when he was succeeded 
by Lord Howard of Effingham in 1684 the assembly was 
in a mood for opposition. Most of the former instructions 
had been renewed and when the governor claimed also that 
he had a right to veto acts at his discretion, the protest of 
the assembly was made with vigor. Yet the king ordered 
the assembly censured for its conduct.^ 

^ Doyle, op. cit., i, 264; Hening, op. cit., iii, 40-1. 



124 I^HE LEGISLATURE OF PROVINCE OF VIRGINIA [286 

When Ludwell's charges against Lord Howard, that he 
tried to enforce laws which had been repealed, were sent 
home, the king declared that, when a repealing law was re- 
jected, the act which it was intended to repeal was at once 
revived. It seems that the assemblymen had claimed that, 
if an act of assembly had repealed another act and later — 
possibly after some time had elapsed during which the re- 
pealing act was supposed to be valid — ^the executive had 
vetoed the repealing act, nevertheless the original act, for a 
time supposed to be repealed, did not revive, but stood re- 
pealed the same as though the veto had not been made. 
This seems absurd, for if true, an act declared void would 
still have the same effect as though valid. ^ Therefore the 
king's position seems to have been sound. 

Just when the governor secured a veto regardless of di- 
rect instructions is not known. But during most of the 
colonial period he had such a veto. In its use gov- 
ernors, then as now, greatly differed. Both the veto 
and assent of the governor to acts were subject to another 
veto by the home government. As a rule, the veto of 
the home government was used to nullify objectionable 
laws to which the governor had given assent, or on which 
the governor had taken no action. Of the first kind we find 
an instance in 1752, when the governor sent a message to the 
assembly stating that fifty-seven acts of the assembly had 
been approved by the home government, but ten had been 
vetoed. As the governor considered some of the ten very 
important, he laid them before the assembly" and said that 
he would help explain to the English government the need of 
some of these acts. In this case the governor saw the acts 

^ McDonald Pap., vii, 229; Randolph Pap., iii, 420, 540; Chalmers, 
Pol. Ann., 359. 

"^Jour. of Coun. as Upper House, April, 1752, iii, 55; Joti-r. of Burg., 
Feb., 1752, 95-109. 



287] 'THE GOVERNOR AND THE LEGISLATURE 125 

from the assembly's point of view. Some of the vetoed 
acts concerned the regulation of the importation of con- 
victs, freedom of colonists from a poll tax/ payments of 
obligations in money instead of in tobacco, the grant to 
vestries of the right to present ministers," a tax on British 
manufactures brought to Virginia, acts having more than 
one subject in them, money questions, especially the issue 
of paper money, and in general acts tending to the disad- 
vantage of trade, especially of British trade, and to a 
limitation of the prerogative. 

Some general rules were also made by the home govern- 
ment which put a limitation on some subjects of legisla- 
tion. For example every act passed must continue for a 
period of two years or more, or it was void. This was 
for the purpose of giving to the king time enough to con- 
sider and, if he desired, to veto the act.^ Acts once re- 
pealed or rejected by the home government could not be 
re-enacted unless the assembly first got the consent of the 
crown, or attached to the acts a clause suspending them 
until the king could pass upon them again. 

Even when a measure had passed and had met no present 
objection, its continuance was indefinite, for acts might be 
left in force for several years and then be rejected. Na- 
turally this power of repeal at indefinite times was very ob- 
jectionable to the colonial assembly and caused many pro- 
tests. 

In an indirect way the governor had much influence on 
the legislature through his part in the selection of speaker 
and his power to nominate and suspend councilors. As 
long as there was but one house, the governor as a mem- 
ber of that house had a voice in the election of the speaker. 

1 Chalmers, Hist, of Rev., ii, 79- -Chalmers, CoL Opin., 53-60. 

2 Palmer, CaL of State Pap., i, 206. 



126 THE LEGISLATURE OF PROVINCE OF VIRGINIA [288 

In 1653 the governor and council objected to a candidate 
for the speakership and the burgesses then asked the rea- 
sons why the governor and council could not join with the 
burgesses in the selection of a speaker. The candidate was 
chosen by a plurality vote, but resigned and another was 
chosen. At all times the speaker had to be confirmed by 
the governor. In 1758 the governor was instructed to 
separate the offices of speaker and treasurer, but he did 
not do so. 

In his control over the council the governor had at 
times almost enough power to dictate legislation. In 1676 
authority to suspend the councilors was given to the gov- 
ernor, though he was answerable to the king for his sus- 
pensions. Even as early as 1641 Berkeley was authorized 
to proceed against any councilor at any meeting of six or 
more councilors.^ In theory the councilors were appointed 
by the king; but the appointments were usually made, 
either directly by the governor, or by the king on the 
governor's recommendation. Early in the eighteenth cen- 
tury it was determined that there should be at least nine 
councilors. To make sure of this number the governor was 
authorized to keep the council up to nine by appointing 
persons to fill vacancies. After this the number was seldom 
more than nine, and thus the governor filled most of the 
vacancies." The governor, having such control over the 
appointment and tenure of councilors, and having some of 
the rights of members of the upper house, being commonly 
its presiding officer, it must be clear, could, if he wished, 
exercise much influence on that house. As all legislation had 

^ De Jarnette Pap., i, 210, (Virginia State Lib.) Berkeley was also 
given authority to appoint many other officers and, like every executive 
who has power to fill offices, he had much opportunity to influence 
assemblymen. 

^See page 136. 



289] '^HE GOVERNOR AND THE LEGISLATURE 127 

to pass the council as well as the burgesses, it is easy to 
see how powerful in legislation the governor might be- 
come. However, January 8, 1725, West, council for the 
Board of Trade and Plantations, and afterward Chancellor 
for Ireland, held that the governor could not vote as a 
councilor in passing bills when the council sat in its legis- 
lative capacity/ The enforcement of this decision would 
tend to make the governor a mere presiding officer, and 
give him a place not unlike that of our lieutenant governors 
in our present-day state senates. This declared inability 
to vote may have been one reason why many of the gov- 
ernors did not attend the sessions of the council and came 
in only near the end of the session to sign bills. The 
journals of the council show the governors to have done 
this much of the time.^ Another source of influence on 
legislation was in the governor's appointive power. This 
was of great importance. All who sought well paying 
offices or political promotion must have the friendship of the 
governor. There were many offices for distribution, 
and councilors and burgesses alike sought these by voting 
for some pet scheme of the governor. Many burgesses were 
made sheriffs or given other lucrative offices. Occasion- 
ally the governor used this appointing power to free him- 
self from an obnoxious burgess by appointing him sheriff, 
and, as in England at an eadier time, practically forcing 
him to accept the office. Later a law was passed prohibit- 
ing any burgess accepting the office of sheriff.'^ 

The relations between the governor and the assembly 
varied with the kind of men in the assembly and the charac- 
ter of the governor. Some governors influenced legislation 

^Chalmers, Col. Opin., 238. 

^ See Jour, of Coun. as Upper House, session Feb., I74S> etc. 
' Further references to the abuse of the appointive power occur in an- 
other chapter, pages 88, 133. 



128 THE LEGISLATURE OF PROVINCE OF VIRGINIA [290 

by usurpation and violence. A considerable number of them 
assumed a high and mighty way with the assembly and in- 
sisted much on prerogative. They tried to control the as- 
sembly to suit their own purposes and sometimes sent per- 
emptory orders to it to consider and act upon recommenda- 
tions made by them; e. g. in November, 1685, Lord How- 
ard of Effingham, the governor, sent a message requiring 
the house to act on his recommendations so that he could put 
an end to the session. He had been angered by the inquiry 
of the house as to what arms had come into his possession 
since the last assembly and what he had done with them. 
The governor said that this matter did not concern them as 
they were the king's arms ; he asked that they attend to the 
things that he had given them to do.^ Of course it was 
the business of the governor to remind the burgesses of 
their duty to obey the king's wishes ; and when those 
wishes were the governor's will also, it gave good ground 
for insistence. About the same time as the dispute about 
the arms, the governor asked that the old custom of send- 
ing the house committee lists to him be complied with, 
but the house said that had been the custom only when 
joint committees were in vogue; but since the two houses 
were now separate, and the governor had put an end to the 
old method of legislating, therefore, " they need not put ye 
Excellency to soe much trouble, as y^ tedious presentment 
of every Committee must needs create." The governor 
accepted this as final. 

Lord Howard also had objections to the wording of some 
of the acts of the assembly. In 1685 ^^ asked the as- 
sembly to repeal all acts making fines payable to the 
" Publique " which he said is "a name certainly most odious 
under a Regal Governr & that w^h doth in name and con- 

^Jour. of Coun. as Upper House, i (Nov., 1685), 36-8, 97. 



291] THE GOVERNOR AND THE LEGISLATURE 129 

sequence, but little differ in that detestable one (Repub- 
lick) wch I am very much persuaded you all soe realy 
abhor, that you will remove anything w^h ni the least 
relates to it." The assembly agreed to make fines payable 
to the king for the future, but said that the old acts could 
not be repealed/ The same governor told the house it 
was to its shame, that in three weeks' sitting it had not 
sent him a single bill to sign. 

Among the governors who quarreled most with the as- 
sembly were Nicholson and Spotswood. Nicholson, as lieu- 
tenant governor and governor, was in Virginia from 1690 
to 1692 and from 1698 to 1705. He had much trouble with 
his councilors, who complained much of his brow-beating 
methods. The council finally secured his recall. He was 
accused of using arbitrary and absolute methods, and " in 
short," the councilors said, " all methods are taken to en- 
gToss all power into his own hands and to render the coun- 
cil insignif Cypher, which," they said, " is a great alteration 
of government, much to the dissatisfaction of this Coun- 
try, and as we conceive, very dangerous and unsafe to his 
ma'ties service." " 

^Jour. of Coun. as Upper House, i (1685), 5, 46. 

^ Va. Mag. of Hist., iii, 375 et seq., gives the full charges and they 
are quoted more fully below, as a sample of the complaints made against 
the governors, though they are harsher than those made against most of 
the other governors, because they constitute a party document and were 
designed to remove a man not in harmony with the local politicians 
who accused him. They said that he called assemblies too often, and at 
unseasonable times, and exasperated the members by " harsh speeches 
and irritating propositions." 

Under the heading, " His Behaviour in the Upper House of Assem- 
bly," they charge as follows: 

"I. Whereas that house humbly conceives that they ought to be left 
to the freedom of their own debates without being swayed and overawed 
by the Governor's Interposition; he is not only Continually present, 
but takes upon himself to preside and debate, and state the questions 



130 THE LEGISLATURE OF PROVINCE OF VIRGINIA [292 

In general the charges which the council made against 
Nicholson were to the effect that he did not allow freedom 
of debate and tried to browbeat the councilors into think- 
ing and acting as he wished, that he even threatened to 
cut the throats of the members who refused to comply with 
his wishes, that he refused to put his speeches in writing 
and changed the minutes to suit himself, that in the courts 
he was partial to his friends, abusive to others, and recorded 
judgments which were not approved by a majority of the 
court, that he made the queen's name cheap by commiand- 
ing everything, however insignificant, in the queen's name, 
that he invented scandalous stories about both men and 
women enemies, called prominent people by vile names and 
was very profane/ Of course these charges are partisan, 
but if only a few of them were true there was cause enough 
to ask for Nicholson's recall. There seems to have been 
some ground for the charges, for the king instructed 

and overrule, as if he were still in Council; which the said House takes 
to be a great encroachment upon their Liberties and privileges. 

"II. His usual high, haughty, passionate and abusive way of brow- 
beating, discouraging and threatening all that speak anything contrary 
to his opinion or designs is another great encroachment on the Lib- 
erties of that House. 

" III. His endeavoring to beget or feed a bad understanding between 
the two Houses; his downright interposing and siding sometimes with 
one House and sometimes with the other, and making entries to that 
purpose in the Assembly Books we take to be a great Encroachment on 
the Liberties of both Houses. 

" IV. His Closetting of the members and using all the arts of Cajol- 
ing and threatening for his own ends, not sticking sometimes to threaten 
the cutting of their throats and their utter ruin, we take to be another 
intolerable encroachment on the Liberties of that House. 

"V. He makes severall Extemporary rash speeches to both Houses 
of Assembly, Cajoling or irritating, promising or threatening, which 
tho' they have great influence in making or marring" the business of the 
Assemblys, yet are never put into writing, nor appear anywhere in the 
Minutes of either House of Assembly." 

* Va. Mag. of Hist., iii, 374-8. 



293] -^-^^ GOVERNOR AND THE LEGISLATURE 131 

Nicholson to allow freedom of debate and vote to the 
councilors, though later he was authorized to suspend 
councilors, thus giving him greater control of them. In 
case of a suspension the governor was required to report 
the matter to the king with causes, and with the reply of the 
suspended councilors. ^ 

Spotswood also had much trouble with his councilors, 
a majority of whom under the leadership of the Blair and 
Ludwell families, endeavored to secure his recall. In turn 
the governor tried to secure the removal of the councilors. 
The quarrel was a bitter one, but neither succeeded in re- 
moving the other. Spotswood's opinion of the burgesses 
has already been stated. One of his dissolution speeches, 
because of its harsh tone, was disapproved by the Board 
of Trade. 

Dinwiddie was another governor who quarreled with 
the assembly, but he was on good terms with the legisla- 
tors much of the time. At the beginning of his admin- 
istration, he showed a disposition to magnify the import- 
ance of the legislature. He said, " The Legislature should 
always be busy ; there are grievances to redress. Irregulari- 
ties to reform. Defects to supply, and Exuberances to cut 
off. I presume there are some Laws that want Re- 
newal, and probably others that want Amendment. I 
therefore most earnestly recommend to you the Prosecu- 
tion of this great work with Diligence and Expedition. 
Consider what Bills may be proper and necessary, for pro- 
moting the public Quiet, and common Interest, by more 
effectually securing Property, encouraging and extending 
Commerce, establishing the Peace, Safety, and Regularity 
of an equitable and well order'd Government. I will 
assist you, Gentlemen, to the utmost of my Power, in the 

' Va. Mag. of Hist., iv, 50; Palmer, Cal. of St. Pap., i, 16. 



132 THE LEGISLATURE OF PROVINCE OF VIRGINIA [294 

Attainment of these desirable Purposes; and you may ex- 
pect from me every Concession in your Favour, of which 
my Instructions will admit." ^ 

But Dinwiddie did not always speak thus. In fact he 
soon came to criticise the burgesses very sharply, as did they 
him. Especially on the fee question the house said that his 
demands were illegal, arbitrary and contrary to the charter 
and anyone thereafter paying them "ought to be regarded as 
a betrayer of the rights of the people." ^ In spite of much 
bitterness Dinwiddie got along with the assembly fairly 
well. Because of the great need for money for defense in 
his administration the assembly generally had an advant- 
age in controversies, and Dinwiddie often had to give way. 
Moreover the people came to understand their governor 
somewhat better also. In a letter to John Pownal, Esq., 
in March, 1755, he said, " as the People are now sensible 
of their unjust Clamour and Compl'ts ag'st me, I excuse 
them, and we are now on good Terms, and believe shall 
rem'n perfectly easy." ^ Nevertheless he was to have 
many disputes with them yet. In many cases the addresses 
of Dinwiddie, as well as of other governors, were abusive 
The house in return was very' severe, but ordinarily kept 
itself within the forms of courtesy better than the gov- 
ernor. The greater courtesy of the house was probably 
due to discretion more than to inclination. 

While these governors had much strife with the as- 
sembly, some governors received high praise from the 
colonial legislators. William Gooch was a favorite with 
the people.* Another favorite was Governor Botetourt.^ 



^Jour. of Burg., Feb., 1752, 3. 

* Chalmers, Hist, of Rev., ii, 351; Dinwiddie Papers, i, 44-6. 
'Dinwiddie Papers, ii, 2. ''Chalmers, Hist, of Rev., ii, 161, 198. 
^A letter dated Aug. i, 1771, from Richard Bland to Thos. Adams 



295] '^^^ GOVERNOR AND THE LEGISLATURE 133 

Sometimes the addresses which passed between the governor 
and the assembly were very frank, yet expressed the exist- 
ence of the greatest confidence between them. In the 
greater part of these addresses is found much very tiresome 
formalism and cant. 

The council was originally designed to advise the gov- 
ernor and to be a check upon him. After the governor 
was given the power of suspending and nominating, the 
council became largely a tool in the governor's hands. 
The control of the patronage by the governor strengthened 
his hold on the councilors.^ Nevertheless, in spite of the 
increased control exercised by the governor, when the stamp 
act and other measures leading to the revolution were up 
for consideration, we find most of the councilors on the 
side of the colonists. 

During the time in which the clerk of the burgesses, as 
well as of the council, was appointed by the governor he had 
an opportunity to manipulate the records if he so wished. 
In several cases he was accused of doing this. But this 
appointment gave him a still more important advantage, in 
that it provided a spy for the governor in each house. 
There were several instances in which one or the other of 
the houses tried to take some action and keep it from the 
governor, but to no purpose. From the time when Robert 
Beverley was deposed as clerk of the burgesses and an- 
other appointed in his place by the governor, all acts of 
either house were sure to be communicated to the governor. 

in England, says that when Gov. Botetourt died in 1770 the assembly 
expressed the highest praise for him and voted to erect a statue to him, 
and " to have it executed by the best Statuary in England, that it may 
be an ornament to our Capital, where it is to be fixed, a lasting and ele- 
gant Testimony that this Country will ever pay the most distinguished 
Regard and Veneration to Governors of Worth and Merit." 
iHartwell, Bl. & Chil., op. cit., 32. 



134 THE LEGISLATURE OF PROVINCE OF VIRGINIA [296 

From the foregoing it is clear that the governor had an 
important part to play in legislation. This part was due 
not only to the place he had as a constitutional part of 
the assembly, but also to the many opportunities which he 
possessed and used to influence and to control indirectly the 
acts of the council and various members of both houses.^ 

' Necessarily much is said in other chapters concerning the relation 
of the governor to legislation. It has not seemed best to repeat it in this 
chapter. 



CHAPTER VII 

The Council as a Part of the Legislature 

In the discussion of this chapter it is intended to avoid 
reference to the council in its administrative and judicial 
capacities. Reference to those, its most important and 
conspicuous functions, will be made only when they are 
necessarily connected with its work as a part of the legis- 
lature. So far as it applies to the council the same order of 
topics as used for the house of burgesses will be followed. 

Owing to the fact that the governor's council had 
administrative and judicial functions, it did not cease 
to exist in that period after the fall of the company 
in which there was no general assembly. Although not 
a legislative body, it is probable !hat the governor 
and council did much real legislating as a part of 
their administrative work. When assemblies were called 
in 1628 and succeeding years, the council became a 
part of that body. Like that of the governor, how- 
ever, the legislative work of the council does not stand 
out prominently until it became a distinct house, some- 
where near 1680. Before that time there was no separate 
journal kept and therefore the acts of the council are 
merged in the acts of the general assembly. Neverthe- 
less there are some things about the membership, organiza- 
tion, and procedure of the council that are known, even 
during the period of the unicameral system. 

The number of councilors differed at different times. 
Probably the regular constitutional number was twelve, 
297] 135 



136 THE LEGISLATURE OF PROVINCE OF VIRGINIA [298 

but for various reasons the actual number might be more 
or less than this. In 1676, we find that the number was six- 
teen/ In August, 1702, several meetings of the council 
had but four members in attendance. This does not prove 
that those were all that held the office, but it indicates that 
the total number was small. A small attendance was fre- 
quent, as evidenced by the fact that there were commonly 
a quorum to do emergency business, though five were 
necessary for ordinary occasions. Hartwell, Blair and 
Chilton in The Present' State of Virginia (1727)^ say 
that, because of the great mortality, many vacancies oc- 
curred in the council, frequently hindering business. To 
remedy this, when the number fell below nine, the governor 
was given power to choose and swear into the council 
enough to make nine. After that power was given, the 
number was not much in excess of nine.^ As has al- 
ready been indicated, the appointment of councilors was in 
the hands of the king. Gradually the king came to depend 
on the nominations of the governor, and from those nom- 
inated the lords of trade sometimes recommended cer- 
tain ones to the king, who in turn appointed. This method 
was used in 1756. Some such method was the rule during 
the eighteenth century. 

To the regular councilors must be added the governor 
who, when present, presided over the council and until 
1725 was considered to have a vote on all bills.* After that 
date the governor frequently absented himself until such 
time as bills were ready for his signature.^ He then came 

^Hening, op. cit., i, 511. "^ Hartwell, Blair & Chilton, op. cit., 22. 

^See page 126. *See page 127. 

*In 1742 the council refused to let Dinwiddie act with it either as 
legislator or judge and appealed to the king to exclude him, and the 
Board of Trade decided against the council because the claim was new. 
Chalmers, Hist, of the Revolt, ii, 199. 



299] ^^^ COUNCIL AND THE LEGISLATURE 137 

in and in the presence of the council signed the measures of 
which he approved, and did such other things as might be 
necessary to close up the work of the session. 

The persons above mentioned constituted the regular 
council. There were however some extraordinary or ex- 
officio members. The crown's superintendent of Indian 
affairs and surveyor general of customs were generally so 
included.^ These persons, however long they were in the 
council, did not succeed to its presidency in the absence of 
the governor and lieutenant governor, as did the regular 
councilors, and therefore they were not recognized as coun- 
cilors in the same sense as the others were. 

In 1693 the king thought the clergy ought to be rep- 
resented in the council and so by letter he authorized James 
Blair, President of William and Mary College, and a 
commissary of the Bishop of London, to be one of the 
council. Blair was a constant source of trouble, es- 
pecially to the governor.^ Governor Andros and his coun- 
cil tried to get rid of Councilor Blair in 1695, '^'^ the 
ground that a customs act of the English Parliament pro- 
hibited any save an English, Irish or colonial born person 
from holding any customs office. Blair was Scotch and as 
a member of the general court he had some jurisdiction 
over customs. He was suspended. This was the second 
suspension for Blair, and in each case he was restored by 
the English authorities." 

The length of term of councilors was not definitely fixed, 
save once during the Commonwealth (1659) when the as- 
sembly declared for a life term. This act was soon re- 
pealed.* In general practice the councilor held during the 

^ Stokes, View of Constitution of British Colonies, 237. 
='Hartwell, Blair & Chilton, op. cit., 35-6- Ubid., 27. 

*Hening, op. cit., i, 517, 537; Hildreth, op. cit., i, 366. The assem- 
bly assumed the right to choose and to confirm councilors. 



138 THE LEGISLATURE OF PROVINCE OF VIRGINIA [300 

king's pleasure, which usuahy meant for Hfe or good be- 
havior. In the later period the governor might suspend 
a councilor for good cause/ 

The qualifications required of councilors were less de- 
finitely stated than for burgesses. It is probable that the re- 
quirement of 1676, that oiiice holders should have resided in 
Viriginia three years, did not apply to councilors, for they 
received their commissions from the crown, and were in 
that respect on the same basis as the governor, who was 
not required to have a definite term of residence. In 1705 
the assembly recognized that office holders must be natives, 
residents for three years, or persons commissioned by the 
crown.^ This was the rule until 1776. The councilors did 
not represent any county, or in fact any division of the 
colony. They might be chosen from anywhere in the 
colony, yet because they were colonels and the military 
commanders of the counties, it is probable that they were 
well distributed to different parts of the colony. The age 
in this case, as well as for the burgesses, was probably 
twenty-one. 

While the laws do not designate any definite offenses 
that disqualified a person for the position of councilor, it 
seems reasonable that the disqualifications in the laws of 
1658,'^ and of 1705,* applied to the position of councilor 
as well as to that of burgess. At least any councilor who 
was proved guilty of these offenses would probably have 
been dismissed from office. In 1659 the assembly declared 
that any one who was convicted of a high misdemeanor, of 
wh'ch the assembly was to be the judge, could not be a 

^Hartwell, Blair & Chilton, 22; Stokes, op. cit., 241. 
'Hening, op. cit., iii, 251-2; Spotswood Pap., ii, 60. 
'Hening, op. cit., i, 433; see pages 51-52. 
^Ibid., iii, 250-1; see page 52. 



301 ] THE COUNCIL AND THE LEGISLATURE joq 

member of the coimcil/ While the assembly did not long 
continue in control of the selection of councilors, it is prob- 
able that their ideas of fitness continued to have weight. 

Bruce's statement that a considerable number of those 
who became members of both houses had come to the 
colony as indented servants, has already been referred to.^ 
Fiske " is of the opinion that these were few, and so far 
as the council is concerned his view seems quite probable. 
Many of the councilors, and in the eighteenth century al- 
most all of them, were chosen from the wealthy planters 
and merchants.^ Governor Spotswood spoke of the as- 
sembly as being composed of " men of narrow fortune 
and mean understandings," but he had the burgesses 
chiefly in mind.'^ This was probably not wholly true even 
of the burgesses. Colonel Robert Quary's statement that 
the councilors were chosen out of the wealthy land hold- 
ers, and were selected for " wealth, station and loyalty," 
and constituted the upper or little house of lords, has been 
referred to before.*^ There seems little doubt of the truth 
of this statement. 

Indeed the king's instructions to Governor Nicholson 
(probably 1705) gave the governor power to nominate 
men to fill the vacancies in the council, but told him " to 
take care that they were men of estates and abilities and 
not necessitous nor much in debt, and that they be persons 
well affected to his Majesty's Government." ^ 

From the first it was customary to administer the oaths 

^Hening, op. cit., i, 517; Hildreth, op. cit., i, 366. 
"Bruce, Econ.Hist. ofVa., ii, 44-6; Ballagh, White Servitude in Va. 
{J. H. U.S.), 82-3. See page 53- 
'Fiske, Old Va. and Her Neighbors, ii, 187. 

* Bruce, ii, 378; Neill, Virginia Carolorum, 15. 

* Ripley, op. cit., 33-4. ^See page 54. 
^ Va. Mag. of Hist., iv, 49-50. 



I40 THE LEGISLATURE OF PROVINCE OF VIRGINIA [302 

of allegiance and supremacy to councilors/ This re- 
quired them to be supporters of the church of England. 
In such a loyal colony as Virginia it is improbable that any 
but a churchman could possibly have been a councilor. 
Catholics were prohibited from holding any office, 
and at various times, so were Quakers and other non- 
conformists." 

We have seen ^ that the burgesses were very insistent 
that a burgess should not hold other offices; it was not so 
with councilors. Indeed the councilors held almost any 
of the important offices save those of burgess and sheriff. 
They were the supreme judges, collectors, naval officers, 
colonels and commanders in chief of counties, escheators, 
farmers of cjuit rents, and were charged with the execution 
of the revenue laws.'' In general they received appoint- 
ment to the places of greatest responsibility and profit. 

The officers of the council were few. When present the 
governor presided,'" but as the governor was frequently, 
and in the eighteenth century generally, absent from the 
meetings, a president of the council was necessary. This 
office was held by that councilor who had earliest taken the 
oath of office. Besides his regular dut)^ as presiding officer 
of the council, he with the council was to administer the 
government during such intervals as might occur between 
the death of one governor and the appointment of another.*^ 

Sometimes when the governor was intending to be absent, 
he commissioned the president of the council to act as 
governor during his absence.'' 

Another officer of the council was the clerk. He also 

^ See page 55. ^ See references pp. 55-56. 

^See pages 56-58. *HartwelI, Blair & Chilton, 24, 32. 

■^ Dinwiddle, Pap., i, 42. ''Beverley, bk. iv, 2. 

''Jour, of Conn, as Upper House, ii, i (1746). 



303] THE COUNCIL AND THE LEGISLATURE 14; 

acted as clerk of the general assembly when the two houses 
were in joint session. Because of this fact considerable 
confusion is found in the records in the use of terms, es- 
pecially as has been said before/ in the use of the term 
" clerk of the assembly." The terms " clerk of the as- 
sembly " and " clerk of the council " are found used inter- 
changeably just as are the terms " clerk of the house " and 
" clerk of burgesses," which were in truth two terms re- 
ferring to the same officer.^ After 1686 the governor ap- 
pointed the clerk of the burgesses in the presence of the 
council in the council chamber.^ Probably the clerk of 
the council was also appointed in about the same way.* 
The only other officer was a door-keeper chosen by the 
council and paid by appropriations from the general 
treasury. 

The privileges and immunities of councilors, while in 
some respects similar to those of the burgesses, differed 
quite essentially. Though the laws regarding the arrest 
of legislators do not as a rule refer to councilors, there is no 
doubt that councilors were exempt from arrest to even a 
greater degree than burgesses. The law of 1664 provid- 
ing that no arrest be made at James City between five days 
before and five days after sessions of the general court and 
of the assembly, unless the persons resided in the county 
of James City, was general in its application and protected 
councilors as well as burgesses." In addition to this the 
councilors claimed exemption from ordinary writ of arrest 
at all times ; but it was ordered that on letter of summons 
signed by the governor or secretary they must attend 

^ See pages 84-85. 

"^Jour. of Cotm. as Upper House, i, 57, 65 (Nov., 1685). 

^Ibid. (Aug., 1702), 2-3; Jour, of Burg., May, 1740, i. 

* Palmer, op. cit., i, 93 (Oct., 1705)- ^Hen., ii, 213. 



142 THE LEGISLATURE OF PROVINCE OF VIRGINIA [304 

court and, in case of failure to do so, they were subject to 
the ordinary forms of common process/ 

Ordinarily the councilors took rank among themselves 
according to the order of taking the oath of office and not 
according to the time of appointment. This sometimes led 
to disputes over privilege, as was the case in 1756, when 
Philip Ludwell and William Beverley each claimed pre- 
cedence over the other.^ 

The assembly of 1639-40 exempted the councilors and 
ten servants of each from public taxes ; but this was re- 
pealed four years later. However, the instructions of 
Charles I to Governor Berkeley, 1642, state that, as part of 
the pay of councilors they and ten servants each were 
to be exempt from all public charges and contributions 
levied by the assembly, save for defensive war, assistance 
toward building a town or churches, or minister's dues."* 
In 1658 the act of 1639-40 was renewed, except as regards 
church duties.* In the eighteenth century tax exemption 
for councilors does not appear in the laws, and from the 
fact that it became customary to pay them salaries in 
money it is possible, though hardly likely, that this exemp- 
tion was withdrawn. 

Councilors were protected from slander by a provision of 
law that any one who was guilty of such an act should be 
imprisoned. Judging from a case in 1658 ^ the burgesses 

' Va. Mag. of Hist., iv, 51. This is taken from instructions to Gov. 
Nicholson. 

"^Dinwiddle, Pap., ii, 350-1. 

^ Va. Mag. of Hist., ii, 283; also Robinson MSS., 227. (Va. Hist. 
Soc. Lib.) 

*Hening, op. cit., i, 445. 

*In 1658 Solomon Martin, for scandalously asserting that Col. Wm. 
Bernard, a member of the council, could make his servants swear whst 
he wished, was imprisoned for a few days. Hening, i, 515. 



305] THE COUNCIL AND THE LEGISLATURE 143 

imposed the penalt}^ but it is not likely that they did so after 
they were deprived of judicial power. 

Punishment of councilors was usually in the hands of 
the governor, or of the governor and other councilors 
jointly. The instructions to Governor Berkeley (1641) au- 
thorized him to proceed against any councilor at any meet- 
ing at which six or more councilors were present.^ In the 
period of usurpation during the Commonwealth the bur- 
gesses assumed the right to expel councilors.^ In 1676 
power to suspend the councilors was given to the gov- 
ernor alone, but with the proviso that he should give sub- 
stantial reasons therefor, and be answerable to the king 
for the truth of the accusations.^ During the suspension 
the councilor could not be a member of the assembly. 
This authority to suspend was given to the governor be- 
cause it was said that Bacon's rebellion might have been 
prevented if the governor had possessed the power to sus- 
pend at the beginning of that disturbance.* 

Though the governor was supposed to suspend only for 
cause, it is possible that he was occasionally tempted to see 
cause where little or none existed. At least Lord Howard of 
Effingham was charged by his enemies in the colony with 
suspending because of personal dislike and even with im- 
prisoning councilors without making any charge against 
them.^ Governor Spotswood complained of the opposition 
of his council and asked that he be given one that he could 
work with,*' but he could not suspend all the members on 
the ground of mere opposition. The reasons for the sus- 
pension of a councilor were to be reported to the king and 

^De Jarnette Pap., i, 210, (Va. St. Lib.) ^Hildreth, i, 366. 

^Beverley, bk. iv, 2. *Hartwell, BI. & Chil., 23. 

= See Ludwell's charges as given in McDonald Pap., vii, 236. 
^ Spotswood Pap., ii, 284-5; see p. 131. 



144 ^^^ LEGISLATURE OF PROVINCE OF VIRGINIA [306 

to the committee of trade and plantations.^ When Gov- 
ernor Andros tried to get rid of Commissary Blair, by sus- 
pending him, the king restored him and said that he was to 
remain in the council until he, the king, thought he had for- 
feited his seat; thus the suspension was overruled. Never- 
theless, on a new charge, Blair was soon suspended again, 
and again restored." He was a rather aggressive op- 
ponent of several of the governors. In January, 1719, 
William Byrd was by order of the lords of trade restored 
to the council. He had been excluded by reason of long 
absence. In 1756 Lewis Burwell, president of the coun- 
cil, having absented himself for a long time and sending no 
excuse, was considered to have forfeited his seat.^ 

The salaries of councilors were not definitely provided 
for at first. Before the time of Governor Culpeper, 
1680-3, the councilors had received no pay except exemp- 
tion from taxes already referred to,* and allowances for ac- 
commodations at Jamestown while attending to public busi- 
ness ; '^ but during his administration began the custom of 
paying them a small amount. The " Lord President " re- 
ceived 500 pounds sterling." However, Beverley (1705) 
says that " the salary of the Council is in all but 35o£ per 
annum to be proportioned among them according to their 
Attendance on General Courts, and Assemblies." ^ In Gov- 
ernor Gooch's term it is said that this was increased to £600.^ 
This was paid by appropriating money from the general 

' Va. Ma^. of Hist., iv, 49-50. 

'•'Hartwell, Bl. & Chil., 35-6; see page 137. 

^Dinwid. Pap., ii, 374; Va. Mag. Hist., iv, 50. 

*See p. 142. ^Hening, op. cit., i, 423, 498, 523; ii, 359. 

® Ripley, op. cit., lOi. 

'Beverley, op. cit., bk. iv, 5-6; Hartwell, Bl. & Chil., op. cit., 34. 

^Va. Mag. of Hist., iii, 117. 



307] THE COUNCIL AND THE LEGISLATURE i^r 

treasury, as in the case of burgesses. Governor Spots- 
wood thought this a dangerous custom and tried to pre- 
vent it. In a letter to the committee of trade, 171 1, he said 
that he had not suffered the method of paying salaries to 
councilors to continue, as it tended to destroy the depen- 
dence they ought to have on the crown; that they ought 
to depend on the crown for support.^ He did not suc- 
ceed in making entire dependence on the crown permanent, 
and later are found several instances showing that even 
the governor received pay from the burgesses.^ 

The salaries of officers of the council, like those of the 
other house, varied much. In 1754 the clerk of the gen- 
eral assembly received £30; in 1765, £80; the doorkeeper 
£5 and £15 at the corresponding times. At other times 
the salaries were usually somewhere between these two 
amounts. 

Sessions of the council, like those of the English upper 
house, were usually much shorter than those of the lower 
house. They usually began at 10 or 11 a. m., and there are 
few references to afternoon sessions. In the latter part of 
May, 1706, however, the council met at 8 or 9 a. m. The 
slight amount of business recorded shows little need of 
long sessions. When the council allowed all the business 
to originate in the lower house, it had much less to do. It 
met and adjourned from day to day or even from week to 
week until the burgesses brought up some bills to them. 

The methods of doing business in the council have al- 
ready been referred to in part in connection with the bur- 
gesses.^ Ordinarily then, the forms of procedure of the 
two houses differed little, except that committees were not 

'^Spotswood, Letters, i, 49. 

'Hartwell, Bl. & Chil., 31; Jour, of Coun. as Upper House, iii, 117; 
Jour, of Burg., Feb., 1745, 118. 
* See p. no. 



146 THE LEGISLATURE OF PROVINCE OF VIRGINIA [308 

much used in the council, the whole body acting together 
on all questions. During conferences with the other house, 
however, the committee was always in use. 

About 1742 the council got in the habit of doing busi- 
ness in a hurry. Bills were given three readings in close 
succession and were passed without much apparent consider- 
ation. They also left the initiation of business to the bur- 
gesses. Consequently in the early part of the session their 
chief business was to meet and to adjourn to the next day 
or to the next week.^ 

The relations of the council to the house of burgesses give 

, much insight into real legislative conditions in the colony. 

1 It will be recalled that before the separation of the two 
houses both the council and burgesses occasionally attempted 
to act separately, as when the council refused to join with 
the burgesses in the choice of Lieutenant Colonel Chile as 
speaker in 1653, and, when the burgesses dismissed the 
governor and council for attempting to dissolve the as- 
sembly in 1658. During that same period it will be re- 
called that the burgesses assumed the power to elect and 

\ to dismiss councilors at will. In 1667 the burgesses declined 
to allow the council to take part in the making up of the 
tax levy. 

After the complete separation of the two houses there 
was a tendency to develop different functions. A spirit 
of jealousy was also developed which occasionally be- 
came almost enmity. This had some important conse- 
quences in connection with the efforts of the burgesses to 
gather power into their own hands. 

As has before been noted, during at least a part of the 
time the council left the initiation of most of the legislation 
to the lower house and thereby became what the English 

^Jour. of Court, as Upper House, May, 1742, 11-14, 53; Feb., 1752, 
i; May, 1765, i. 



309] ^^^ COUNCIL AND THE LEGISLATURE 147 

upper house is toda}^, a check upon the people's representa- 
tives. All petitions were referred by the council to the bur- 
gesses for their action. Yet the council was at times as 
active as the other house in legislating.^ Chalmers seemed 
to think that the council, with its various functions, had such 
a place in the government that it was almost absolute." 
This does not seem to be true for all times, but their small 
number, their more permanent tenure of office, and their 
other powers, gave the councilors a place distinct from 
that occupied by the burgesses. 

Some of the practices of the two houses seem to imply 
that the burgesses recognized their house as inferior to the 
council. The following points will illustrate this. When the 
two houses came together in joint session it was the house 
that went to the council in the council chamber. It is 
probable that the clerk of the council was the clerk of the 
joint meeting, that is, of the general assembly met in one 
body.^ In transmitting messages and bills the council sent 
their clerk ; the burgesses sent a committee of its own mem- 
bers.* When new burgesses were chosen the councilors ad- 
ministered the oath of office to them.^ These practices 
might well be considered sufficient to indicate that the coun- 
cil had the superior place in the legislature. 

And yet the burgesses were chosen by the people and 
held authority directly from the people, while the council 
was chosen by the royal power and had less direct connec- 
tions with the people. It was but natural, therefore, that 
jealousies should arise between the two houses and that 

^Jour. of Court, as Upper House (Apr., 1704), I--2, 12, etc. 
^Chalmers, Hist, of Rev., i, 317. 
^Jour. of Coun. as Upper House, i, 74 (Nov., 1685). 
* Ibid., ii (Apr., 1706), etc. This seems to be what was proposed on 
the organization of Congress under the constitution of 1789. 
*See p. loi. 



148 THE LEGISLATURE OF PROVINCE OF VIRGINIA [310 

the one, because of its superior social and political position, 
and the other, because of its nearness to the people, should 
each try to gain an advantage over the other. Doubtless 
the governor tried to create and keep up dissension between 
the two houses for his advantage/ While both houses were 
at times somewhat aggressive and each inclined to encroach 
upon the other, the house of burgesses seems to have been 
the worse offender in this direction. The fact that the ori- 
ginating of money bills was considered as belonging to the 
burgesses gave them great power and enabled them to en- 
force their demands in cases where money was involved. 
It was a general policy with the burgesses to enforce their 
position by withholding appropriations. This is further 
discussed in the next chapter.^ 

A few illustrations of disputes between the two houses 
will readily show the feeling of jealousy which existed be- 
tween them, and at the same time show some of the efforts 
of each house to gain an advantage over the other. 

The attempt of the council to prevent the payment of a 
salary to the speaker of the house has been referred to 
before. ■'* 

In 1 7 14 a dispute arose as to who should present to the 
governor an address to the king congratulating him on his 
accession. After several conferences it was agreed that if 
the governor received it in the council chamber the coun- 
cilors were to stand and the speaker of the house should 
present it; but if he received it in "the pallace," i. e. the 
governor's residence, the oldest councilor was to present 
it. The governor decided to receive it in the council 
chaniber.'^ 

In October, 1744, six burgesses and three councilors 

^Council charges against Gov. Nicholson, Va. Mag. of Hist., iii, 277 . 
See p. 130; note iii. 
^ See pp. 163-165. ^ See pp. 98-99. 

*Jour. of Coun., ii, 11 (Nov., 1714). 



31 1] THE COUNCIL AND THE LEGISLATURE j^g 

were holding a conference on a fee bill; one of the coun- 
cilors contrary to all precedent put on his hat during the 
meeting and read a paper. The house took this as an of- 
fense and asked the council if its representative acted under 
directions of the council, and if the council claimed it as 
a right that its conference managers should sit with hats on 
in conference while the burgesses remained uncovered. 
The burgesses refused to receive the paper read at the 
conference until an answer was received from the council. 
The council sent answer that no offense was intended and 
that the councilor had expected others to put on their hats 
when he had done so. The house accepted the explanation 
as satisfactory.^ 

Another dispute arose over the question of removing the 
capital in 1748. The two houses were on opposite sides, 
the burgesses favoring the removal. John Blair, a coun- 
cilor, while talking to a burgess, pointed to the speaker of 
the house who was passing and said, " There goes the man 

who is at the bottom of this H Scheme and has told 

several Lies and advanced many Things that he knew to be 
false and therefore he had no Confidence in such a Man, 
that his only motive is his private Interest though he pre- 
tends the publick Good." The burgesses said this reflected 
on the honor of both the speaker and the house and resolved 
to bring charges against Blair and ask the council to punish 
him. The council inquired into the matter, Blair confessed 
and excused himself because of a " warm temper." A mes- 
sage was sent to the house explaining the situation and ask- 
ing that this affair should not interfere with public busi- 
ness. This action was accepted as satisfactory.^ 

^Jour. of Coun. as Upper House, ii, 58 et seq. (Sep., 1744); Jour, of 
Burg., Sep., 1744, 76. 

^Jour. of Coun. as Upper House, iii, 17-8 (Nov., 1748); Jour, of 
Burg., Nov., 1748, 41-2. 



I50 THE LEGISLATURE OF PROVINCE OF VIRGINIA [312 

In 1748-9 a serious dispute arose as to whether the 
burgesses had the right to search the journals of the coun- 
cil without its leave. The house appointed some of its mem- 
bers to make such search and no permission was asked- 
The council ordered its clerk to refuse such privilege un- 
less a message should come from the house to the council 
asking for such permission. This act of the burgesses 
seems to have been an effort to control the entire govern- 
ment in the interest of the popular party. ^ It is, however, 
only one of several evidences of bad feeling at this time. 
On March 23, the burgesses sent a written message to the 
council that, as it was the season of the year (Easter) which 
was generally given over to religion, and as they knew of 
no reason why public business could not be interrupted, 
they would use " their undoubted Right " to adjourn from 
Thursday to Monday ; they hoped the councilors, being good 
churchmen, would do the same. At first the council laid 
the message on the table, then ordered it expunged from 
the records and adjourned till Saturday. The cause of 
this failure to agree on adjournment, and of the rather 
radical and aggressive acts of the two houses is not very 
clear in the records, but was probably factiousness growing 
out of disputes on other questions. 

The council then again took up the claim of the house 
that it had the right to search the council journal without 
permission. In the meantime it seems that the burgesses 
had passed a resolution stating that the council had vio- 
lated an " undoubted Right and Privilege of their House." 
This resolution would be published in the journal and spread 
abroad at the close of the session. Therefore the council, 
to defend itself, prepared and passed some resolutions in 

• ^Jour. of Coun. as Upper House, iii, 7, 19, 21 et seq., 91, 106, 114-20; 
Palmer, op. cit., i, Ixiii, 241. 



313] THE COUNCIL AND THE LEGISLATURE jci 

answer to that of the house. These resolutions stated that 
the regular method of getting information was by one house 
addressing the other asking for it. " But since the Bur- 
gesses have presum'd to run counter to this ancient, decent, 
and established Method, — the Council find themselves un- 
der the unpleasing Necessity of publickly vindicating the 
Legality of their Proceedings, which has been reflected 
upon with such mistaken Heat, and unparallel'd Severity." 
They resolved to print their defense in the Virginia Gazette, 
a paper published by the public printer. Some of the bur- 
gesses told the printer that he would be taken into custody 
and deprived of his position, if he printed the resolutions. 
The paper appeared without the resolutions and Parks, the 
publisher, was called before the council to explain. He 
said that the governor had ordered him to delay the pub- 
lication for at least a week. The council then prepared an 
address to the governor, asking if he had given such an 
order and, if so, upon whose advice. If he had giv^n such 
an order, he was asked to revoke it. It was on March 27 
that Parks was ordered to print the resolutions. He finally 
did so on May 10, and sent his submission to the council. 
On May 1 1 , the burgesses ordered Parks into custody and 
sent a message to the council, asking if it had prepared the 
resolutions. They said that the methods were so unparlia- 
mentary and so beneath the character assumed by the coun- 
cil, that they would not believe the council had ordered the 
resolutions printed. The council replied in rather violent 
language, that it had given the order. The governor now 
called for the bills that were ready for his signature, made 
his farewell address after 22 years as governor, and closed 
the assembly. This was probably the most violent of all 
the quarrels between the two houses and was due to the 
efforts of the house to assume too much power and to dom- 
inate the government. Other instances of like character 



152 THE LEGISLATURE OF PROVINCE OF VIRGINIA [314 

may be referred to very briefly. In 1706, when the gov- 
ernor was urging military preparations, the council was 
frequently with him against the burgesses. Conferences 
having as their object the settlement of differences between 
the two houses were very frequent on both military and 
other matters.^ In 1740 the burgesses prepared an ad- 
dress to the king and a petition to the Commons to give 
Virginia the same liberty of importing salt as was pos- 
sessed by northern colonies. The council refused to join 
in the address and petition. The burgesses then resolved 
to appoint Edward Randolph as agent to secure the thing 
desired. The council refused to agree to the appointment.^ 
Later the burgesses succeeded in another similar move. 
The Ludwell ^ Papers show that the council complained to 
the burgesses that the lower house had assumed to itself 
complete control over complaints and grievances sent to the 
general assembly. The council said that they should come 
before the governor and council as well as the burgesses. 
The burgesses sometimes attached riders to money bills 
to gain their point.* As early as 1740 the attempt of the 
burgesses to appoint an agent in England was a cause of 
dispute between the two houses. 

Still other incidents tend to illustrate the relations ex- 
isting between the two houses, such as disputes over taxa- 
tion, over judicial appeals to the assembly, etc., but they 
add little that is new.^ 

^Jour. of Coun. as Upper House, i, 49-50, 53, 57-59, 

"^Ibid., ii, 3-4 (Aug. 21, 1740). 

^ Ludwell Papers (MSS.), ii, no. 34. 

*^Jour. of Burg., Aug., 1754, 18. 

^Disputes over pay to Ludwell, Va. Mag. of Hist., v, 63; on ques- 
tions of appeals, Hartwell, Blair & Chilton, op. cit., 26; on taxes. Hart- 
well, Bl. & Chil., op. cit., 62; on search of Council Journal, Calendar 
Va. St. Pap., i, 241, etc. 



315] THE CO UNCIL A ND THE LEGISLA T URE i ^ 3 

In all these disputes, as well as in all disagreements over 
bills, resolutions, addresses, and the like, the common pro- 
cedure was a conference. There was a special room set apart 
for this work and the house usually had twice as many 
representatives as did the council. While there were fre- 
quent instances of failure to agree, some compromise was 
reached in the majority of cases. Occasionally terms of a 
conference could not be agreed upon.^ 

From what has thus far been given it might seem that 
the customary relations between the houses were hostile. This 
is hardly true, for these cases involve only one side, and 
are given because they represent phases of the legislature 
that could be presented in no other way. The fact that a 
great deal of legislating was done and much of it with- 
out friction, the fact that in many cases the two houses 
united in addresses both of opposition and approval of the 
governor and of the English government, shows that while 
the rivalry usually existing between the two houses may 
have been present, it did not prevent the real work of 
legislation. 

^Jour. of Coun. as Upper House, ii (March, 1747), 24-5. 



CHAPTER VIII 
Features of the Legislature as a Whole 

This chapter will include some discussion of such topics 
as the place of meeting of the legislature, petitions to the 
legislature, control of money questions, appointment and 
administration, judicial business, treaties, and the establish- 
ment of two houses. 

The place of meeting of the legislature remained at James- 
town throughout the seventeenth century, with the exception 
of two sessions. These were the ones following Bacon's 
rebellion, when, because the state house had been destroyed,^ 
one session was held at Green Spring, the home of Gov- 
ernor Berkeley, and one at Middle Plantation. 

In December, 1700, the sessions were held in the college 
building adjoining Williamsburg. This continued to be 
the meeting-place until 1705, when a state house was built 
at Williamsburg. There seems to have been no dispute over 
the removal from Jamestown, the governor and both houses 
agreeing to the change." But the state house at Williams- 
burg having been burned, the session of July, 1746, was en- 
livened by a disagreement of the two houses on the question 
of rebuilding or removing to another place. A conference 
failed to settle the matter and it went over to the next ses- 
sion." In October, 1748. the act to rebuild at Williamsburg 

' Hening, op. cit., ii, 401. 
^Palmer, op. cit., i, 75. 

'^Jour. of Coun. as Upper House, ii (July, 1746), 28; (Oct., 1748), 49. 
154 [316 



317] THE LEGISLATURE jcq 

became a law, although with much opposition/ This 
is evident from the fact that in the next session in 
April, a bill to establish a new town near Newcastle and 
to build at private expense buildings for public use, was 
passed by the burgesses, (probably by a two-thirds vote)but 
was defeated by the council. John Robinson, Thomas Lee 
and William Fairfax of the council favored the measure. 
They said that two-thirds of the people favored removal." 

Again, in 1752, the burgesses passed an act to establish a 
town to become the capital, by a vote of 44 to 34, but the 
council refused to pass it to a second reading.^ In the mean- 
time the state house was being rebuilt at Williamsburg and 
both houses passed appropriations to pay the builder.* In 
1 76 1 the burgesses rejected a bill to remove the capital by 
a vote of 35 to 36.' The matter again came up in 1772 
and a resolution that a bill for removal be prepared was 
carried b}^ the burgesses by a vote of 34 to 25.** After 
much parliamentary skirmishing the bill finally passed by 
a vote of 48 to 32." However, the capital remained at Wil- 
liamsburg until the revolution. The conventions of July 
and December, 1775 met in Richmond but the latter ad- 
journed to meet at Williamsburg. It was at Williamsburg 
that the convention met to adopt the first state constitution. 

The right of petition to the assembly was early recog- 
nized. Although used in the case of Governor Harvey, in 
1635, it was probably not directly authorized and pro- 
vided for before 1664. It was then provided that notice 
of meetings of the assembly should be given in the parish 

^Jour. of Court, as Upper House, iii (Oct., 1748) , 23-41 ; Hen. , vi, 197-8; 
(Oct., 1748), 49-54. Dispute over this has already been referred to on 
p. 149. ''Jour, of Coun., iii (Mar., 1748-9), 56-7. 

^Ibid. (Feb., 1752), 65; Jour, of Burg., Feb., 1752, 70, 7i, 93, 99- 

^Jotir. of Coun. (Nov., 1753), 30. "Jour, of Burg., March, 1761, 84. 

^Ibid., 1772, 42. "^ Ibid., 1772, 89, 97, 100, 103, 116. 



156 THE LEGISLATURE OF PROVINCE OF VIRGINIA [318 

churches and that days should be appointed for the people 
to meet in their election places and present their grievances 
to the burgesses. This was a legal provision for petitions 
to the government for redress of those grievances/ This 
law gave rise to all sorts of complaints and unsigned petitions 
which did more evil than good. It was amended in June, 
1680, and by the amended act the sheriff was to appoint 
a time and place for the meeting and all petitions had to be 
signed, or they could not be presented in the assembly.^ 
The right to petition continued throughout the colonial era, 
and was much used. Occasionally, however, near the end 
of a session a limit was put to the time at which petitions 
would be received. This was only to prevent their coming 
in during the last few days of the session, when there was 
no time to act upon them. The enactment of 1680 was re- 
newed in 1705 and again was re-enacted in 1762 under the 
head of a provision for a court of claims in each county, 
where claims, grievances, and petitions to the assembly 
might be presented.^ Claims against the colony were 
brought in this way, and the house refused to allow them 
to be brought otherwise.* When the petition was received, 
it was referred to the proper committee and acted on as 
was other committee business. The subjects of petition were 
many ; as petitions for office, for pay for slaves killed while 
in outlawry or while being punished, for pay for tobacco 
destroyed by fire and flood while in public warehouses, 
against inoculation for small-pox, for reward for discover- 
ing a cure of some disease. Petitions for permission to es- 
tablish roads, bridges and ferries both at public and private 
expense, were numerous. The organist at Williamsburg 

'Hening., op. cit., ii, 211-2. "^ Ibid., 482. 

^Hening, op. cit., vii, 528; Hartwell, Blair & Chilton, 38. 
*Jour. of Coun. as Upper House (Nov., 1685), i, 11-13. 



319] THE LEGISLATURE I^j7 

church, the pubHc printer, and the jailor, usuahy had to peti- 
tion not only for an increase of salary, but for continuance 
of the regular allowance. In fact it is hard to think of any 
subject which was not occasionally represented by a petition. 
Of this system, as worked out, it is said " to know the 
Pressures, Humours, common Talk, and Designs of the 
People of that Country, perhaps there is no better Way than 
to peruse the Journals of the House of Burgesses, and of 
the Committee of Grievances and Propositions, which is 
one of the Committees of that House." ^ 

The control of money affairs, including taxation and 
appropriations, was a matter of great importance in the 
colonial legislature of Virginia. Around the questions of 
where the control should be, and how and when it should 
be exercised, centre many of the quarrels between the two 
houses, between the assembly and the governor, and be- 
tween the colonists and the home government. Control 
over taxation will first be discussed. 

It will be remembered that the assembly of 16 19 levied 
a tax of one pound of tobacco per poll to pay its officers, 
but made no further claim in regard to taxation; also that 
in 1623 the assembly forbade the governor to lay any taxes 
which were not authorized by the assembly.' In 1629 the 
assembly exercised authority over these things and levied 
a tax of five pounds of tobacco " per pol," and appro- 
priated it for certain specified expenditures, which, for the 
most part, had already been made.^ It also provided a 
detailed system of collection, the burgesses being the col- 

^Hartwell, Blair & Chilton, op. cit., 39. 

'See pp. 25, 29. Hening, op. cit., i, 124. Chalmers {Pol. Ann.), 64, 
says that in 1624 was the first participation of the assembly in power of 
taxation. This is not quite true, as it is shown above that the assembly 
of 1619 levied a tax. 

^Hening, op. cit., i, 142. 



158 THE LEGISLATURE OF PROVINCE OF VIRGINIA [320 

lectors. The assembly of 163 1-2 again asserted complete 
control over taxes and appropriations/ This was con- 
firmed in September of the same year, in 1634, and again in 
T645. The terms of the surrender of 1652 contained a de- 
claration that Virginia was " free from all taxes, customs 
and impositions whatsoever, and none to be imposed 
on them without consent of the Grand Assembly." Shortly 
after the restoration the assembly gave to the governor and 
council power to levy taxes for three years, to pay debts 
and salaries allowed by the assembly and such other debts 
as the executive council should find justly due; but this 
tax might not amount to more than tvv^enty pounds of 
tobacco per poll in any one year. The object in giving such 
authority was to remove the necessity of an annual meeting 
of the assembly when it had little or no other business to 
do.^ This did not grant full power to levy taxes; neverthe- 
less in those times it was a very dangerous authority to 
confer upon an executive body. 

In November, 1666, the governor desired that two or 
more of the council might join with the burgesses in mak- 
ing the tax levy, but the burgesses refused to allow it, 
and insisted upon the privilege of laying the tax in the 
house of burgesses, and upon leaving to the governor and 
council only the privilege of approving or disapproving the 
levy thus made. The acceptance of this arrangement by 
the governor and council as a guide for the future ^ seems 
to show that the laying of the tax levy had already been 
taken from the whole assembly and given to the burgesses 
alone, though the right to ratify or reject was left in the 
hands of the other portion of the assembly. It is impos- 

^Hening, op. cit., i, 171. 

^ Ibid., ii, 24; Campbell, C, 254; Session Acts, 1661-2, 33. 

^ Hening, op. cit., ii, 254; Randolph MSS., 303 (Va. Hist. Soc. Lib.). 



32 1 ] THE LEGISLATURE i^g 

sible to say that this was always the method pursued, but 
there is little doubt that it was the method aimed at by the 
burgesses. There are a number of declarations at different 
dates to show that this was the ideal. For example, in the 
arguments of the London agent of the assembly about 1675, 
it was said that the kings had never offered to impose any 
tax upon Virginia without the consent of their subjects 
there. ^ Again, in 1676, this right was asserted. In a reso- 
lution of May, 1769, the house declared that the sole right 
of imposing taxes belonged to the burgesses.^ The protest 
against the Stamp Act was of the same nature.^ The same 
sentiment is expressed also in the letter of Governor Gooch 
to the Lords of Trade in which he said that all bills for 
laying taxes on the people take rise in the house of bur- 
gesses, and generally all bills prepared on petition or rep- 
resentation of the people are first moved there, but either 
house may frame bills.* The same governor again recognized 
this in 1740, when he said that the Lords of Trade would 
question the duty on slaves which is assessed on the buyer, 
but that " the people's representatives " think no other tax 
can be levied. '"^ Keith makes reference to the fact that the 
burgesses resisted every effort of the governor, or of the 
governor and council, to levy taxes or to collect fees not 
authorized by them.® Although the burgesses claimed al- 
most complete control over taxation they were not averse 
to permitting the English government occasionally to sug- 
gest measures of taxation, though they still held the right 
to accept or reject the suggestions. In 1680 Charles II 

^Hening, ii, 526. "^Jour. of Burg. (May, 1769), 27- 

^Ibid. (Oct., 1764), 37-8. 

* Gooch was governor from 1727 to 1749. See his letter printed in 
Va. Mag. of Hist., iii, 114-17. 

''Jour, of Coun. as Upper House (May, 1740), 3- 

* Keith, op. cit., 167; Va. Mag. of Hist., i, 176. 



l6o THE LEGISLATURE OF PROVINCE OF VIRGINIA [322 

sent over by Lord Culpeper four bills which, when passed 
by the assembly, were to become law. One of these was a 
renewal of the act of 1661 imposing two shillings per hogs- 
head on tobacco exported from Virginia, but omitting that 
part which put an export tax of ten shillings on ships not 
bound for an English port. The acts of 1661 ^ had ex- 
empted ships owned wliolly by inhabitants of Virginia 
from these export duties, and an act of 1669 " had exempted 
such vessels from the castle duties of one half pound of 
powder and three pounds of shot per ton burden of the 
vessel or one shilling in money in lieu thereof, and six 
pence for each passenger. Now the bill sent over by the 
king called for the two shillings tax and a renewal of the 
castle duties and made no exemption for Virginia owners. 
The burgesses rejected the measure; but, when it was 
amended by such exemptions as had prevailed before, they 
finally passed it.^ The revenue from this act was made a 
permanent fund for the use of the government and was 
largely under the control of the governor. To some degree 
this lessened the power of the assembly and increased that 
of the governor. 

Although the assembly was so careful to keep control of 
taxation, it was not equally careful to use that control justly. 
When the great landowners dominated the assembly, as 
they did m.uch of the time, it levied a poll rather than a 
land tax, and thus put an unjust share of the burden on the 
poorer classes. At tim-es the councilors seemed more in- 
clined to be just than the burgesses, for in 1683 they re- 
commended the abolition of poll taxes, and the substitution 

'Hening, ii, 130-2, 133-4, I3S-6. "^Ibid., 272. 

^Ibid., ii, 466, and note. Chalmers seems to give the idea that the 
exemption was in the bill as sent by the king. He says the bill was 
disapproved by the Lords of Trade. Chalmers, Pol. Ann., 341-2, 354. 



323] ^^£ LEGISLATURE l5l 

of a tobacco tax which would have borne more heavily on 
the wealthy landowner than on the poor, and would have 
been more nearly according to the principle of ability to 
pay. It was not adopted. 

Hartwell, Blair and Chilton say that the assembly in levying 
a tax first found the whole charges against the country, 
added eight per cent for cost of casks for the tobacco paid 
in, and ten per cent for cost of collection, and divided this 
equally among the tithables, i. e. slaves of both sexes, and 
males over sixteen years of age. Other taxes, on trade and 
lands, were sometimes levied, but generally for some speci- 
fic purpose.^ 

Tax laws giving special advantages to Virginians, even 
as against Englishmen, such as the exemption acts of 1661 
and 1680 above mentioned, were not uncommon in the 
colony. The object was to encourage ship building and 
ship owning by inhabitants of the colony. These laws seem 
to have been endeavoring to do for Virginia much the same 
thing as England was then trying to do for English mer- 
chants and shipowners by means of the navigation acts. 
When money was wanted for the war in 1710, the Virginia 
assembly proposed to raise £20,000 on British manufactures 
and on British merchants doing business in the colony." 

We thus see that the control of taxation was clearly in 
the hands of the assembly, usually of the burgesses, during 
the whole period of their legislative existence. Where did 
it get this authority? Not from any direct grant of the 
power, for no such grant was ever made. Chalmers says 
that it came from the possession of property.^ The pos- 

1 Hartwell, Blair & Chilton, op. cit., 54- 

2 Chalmers, Hist, of Rev., i, 396; Spotswood, Letters, introd., ix, 
i2g-33- 

* Chalmers, Pol. Ann., 55. 



l62 THE LEGISLATURE OF PROVINCE OF VIRGINIA [324 

session of property doubtless forced its possessors to take 
control of taxation in order that they might protect that 
property. Moreover it is the history of English peoples 
that the representatives of the people ultimately gain control 
of the power to tax the people. 

The next topic that comes up for consideration is the 
control over appropriations. In the early history of the 
colony the right of the assembly to make appropriations 
was not an exclusive one. Sometimes and for some ob- 
jects the executive council decided the matter. Gradually 
the assembly extended its power over a wider ranger of ap- 
propriations, and as "the assembly" came more and more to 
mean the burgesses, the control of the executive council 
slowly became less and less. By the end of the seventeenth 
century the control of appropriations was in the hands of the 
assembly and to a considerable degree in the lower house, 
and so remained till the revolution. An exception was in 
the control over appropriations for the salaries of the gov- 
ernor and secretary. These were the king's officers and 
were paid out of the king's revenues. To allow the as- 
sembly to control these might have given it too much in- 
fluence over the king's officers and made them dependent 
upon the legislature instead of upon the king. Even the 
councilors were sometimes paid out of the king's revenue for 
the same reason. To prevent any undue influence over the 
royal officials the instructions to Effingham forbade the legis- 
lature making any appropriation for the governor, deputy, 
or council, unless the money was given to the use of the 
king. The act provided that the money was to remain in 
the treasury until the king signified his consent for the 
officers to have it. The act also indicated how the money 
should be used if the king did not consent.^ There are a 

^Randolph Pap., iii, 436. 



325] THE LEGISLATURE l52 

few exceptions to this rule however. Because of the trou- 
bled times in England in 1643, ^^e governor's salary was 
cut off. To enable him to support thp dignity of his office 
the assembly levied a special tax and made an appropria- 
tion for his benefit. Great care was taken that, (since this 
was the first time in the history of the colony that money 
was appropriated for such a purpose), it should not be- 
come a precedent, but be simply an accommodation to the 
governor.^ During the Commonwealth the governor elected 
by the assembly was also paid by it. ^ 

The control of appropriations was not secured by the as- 
sembly without frequent disputes. Much pressure was 
brought to bear by the governors and the English officials 
to influence appropriations to suit their own purposes, but 
the assembly by refusing the appropriations maintained such 
control as to keep the governors in continual worry to find 
ways of raising enough money. It must be said, however, 
that the governors differed much in their ability to secure 
money from the assembly. Chalmers says that in 171 5 the 
standing revenue of £4000 was too small to pay the civil 
list and that £300 of the king's quit rents were used to help 
out." 

There seems to be no doubt that the assembly knew its 
power and used it to the advantage of the colonies. For ex- 
ample when Lord Loudoun, the English general in America, 
put an embargo on shipping from America to Europe in 
1756, the Virginians had 50,000 bushels of wheat on ship- 
board ready for exportation and it was certain to spoil if 
the ships did not sail. Governor Dinwiddie wrote to Lou- 
doun and insisted that the embargo be withdrawn, so far 
at least as Virginia ships were concerned, for he could get 
no war supplies from his assembly until the embargo was 

' Hening, op. cit., i, 280-2. ^Ibid., 423, 498, etc. 

* Chalmers, Hist, of Rev., ii, 71. 



1 64 THE LEGISLATURE OF PROVINCE OF VIRGINIA [326 

removed. It was argued that if the people lost their grain, 
they could not pay taxes and the assembly would not vote 
them. It seems that the English government supported 
Dinwiddle in this demand on Loudoun.^ 

In spite of the fact that the legislature used its power 
over appropriations to force the hands of the governors, it 
was on the whole tolerably liberal, especially in the matter 
of military appropriations. Not only colonial troops for 
campaigns against the Spanish, French, and Indians, but 
even the king's troops were supported by appropriations 
made by the assembly.^ The English parliaments of 1757 
and 1758 made grants of over £50,000 to repay Virginia 
for money expended in the war with France,^ and this did 
not equal the amount Virginia had spent. Nevertheless 
Governor Dinwiddle was much piqued at the way in which 
the appropriations were made or because they were not 
larger. In 1754, writing of the burgesses, he said, " The 
People here are too much on a republican Spirit. The 
House of Burgesses making resolves in disposing of the 
King's money without the Concurrence of the other 
Branches of the Legislature, is without Precedent." He 
promised to be on guard to prevent any sum being paid ex- 
cept according to his instructions.* He also said an Ameri- 
can assembly could not be depended upon to carry out an 
expedition against the French, because it would not furnish 
supplies readily and abundantly enough. "" On one occasion 
the burgesses attached to a bill appropriating money a 

"^ Dinwiddie, Pap., ii, 618, 664-5. 

"Hening, ii, 471. Chalmers, {^Pol. Ann., 339), says, the assembly of 
April, 1679, made representations to the king that, inasmuch as they had 
been compelled to support the soldiers sent over to help Berkeley, and 
had other great expenses, they were unable to pay the arrears of the 
quit rents. 

■^Hening, op. cit., vii, 372-3. 

^Dinwiddle, Papers, i, 236. '" Ibid., i, 300, 304. 



327] THE LEGISLATURE jgr 

" rider " in the form of a demand that the governor should 
surrender his fees for granting land patents. The gov- 
ernor declared the rider unconstitutional, though similar 
methods had been used by the English House of Com- 
mons long before.^ 

There is little doubt that the English government, 
both through instructions to the governors and through 
vetoes at home, sought to limit the power of the Virginia 
assem.bly over revenues and expenditures. The attitude 
of the assembly on money, as well as on other questions, 
adopted at a very early period, was that of complete con- 
trol, even to the point of making colonial law have prece- 
dence over certain forms of English law. This is illustrated 
in the oath prescribed by the assembly of 163 1-2 to be given 
to the commissioners of monthly courts. They were to 
swear to do justice according to " the lawes and customs 
of this colony, and as near as may be after the lawes of the 
realme of England and the statutes thereof made." " This 
would seem to give a loophole for evading the laws of 
England on the ground that they did not apply to con- 
ditions existing in the colonies, and no such evasion of 
the colony laws was provided for. Again it was enacted 
in 1643, that no act of court or any proclamation was to 
be obeyed if it was contrary to any act of the assembly." 
It is not true that the colonists during a large part of the 
colonial period were desiring and plotting independence, 
but it was the natural desire to control their own property 
and their own affairs, because they believed they knew the 
conditions better than the royal officials and the home gov- 
ernment could : and that led the Virginians to assume control 

'Gardiner, Student's Hist, of Eng., 670. The principle was in use 
before 1700. 

^Hening, op. cit., i, 169. ^Hening, op. cit., i, 264. 



1 66 THE LEGISLATURE OF PROVINCE OF VIRGINIA [328 

of taxes and appropriations, and to try to dominate the gov- 
ernment of the colony. In later years some of the leaders 
came to believe that the interests of the colony and those of 
the mother country were not the same and in some re- 
spects in direct conflict with each other. Then it was that 
the thought of independence first came to them. 

Appointment and administration, as exercised by the as- 
sembly, will be discussed, though briefly, because they show 
the general tendency of the assembly to take all authority 
which was not expressl}^ denied to it, and sometimes even to 
trench on what was denied. In fact the power to do anything 
outside the regular routine was sure to be claimed by the 
assembly. There are more examples of this in the very 
early history of the assembly than later. As the instruc- 
tions to the governors became more definite on appoint- 
ments, the power to make them went more fully to the 
executive. 

Instructions to Governor Berkeley (1641) gave him au- 
thority to appoint all officers except councilors, captains of 
forts, the muster-master, and the surveyor-general, most of 
whom were to be appointed by the king. It is doubtful, 
however, whether Berkeley used this power to the full ex- 
tent without consulting the wishes of the assembly.^ 

During the Commonwealth the assembly appointed all of 
the officers of the colony,- though it permitted the par- 
liamentary commissioners to appoint the governor and sec- 

^Sainsbury, Calendar of State Pap., i, 321. 

^Hening, op. cit., i, 369, note; Ripley, op. cit., 205; Howe, op. cit., 
65. Beverley, op. cit., (bk. i, 55,) says, " Notwithstanding this act of 
Navigation, the Protector never thought the Plantation enough secured; 
but frequently changed their governors, to prevent their intriguing with 
the people. So that during the small time of his Protectorship, they 
had no less than three Governors there, viz., Diggs, Bennett and 
Matthews." This is wrong. Cromwell appointed none of them. All, 
unless the first, were elected by the assembly. 



329] ^^^ LEGISLATURE j(^y 

retary immediately after the surrender/ After conferring 
with Colonel Matthews, the Irish and Scotch commissioners 
of parliament, on November 26, 1653, reported him to the 
council of state in England as a fit person to be governor 
of Virginia. Since this was more than two years before 
Matthews was appointed governor (Feb., 1656) it seems 
to indicate that he was practically nominated to the posi- 
tion by the English government long before the assembly 
elected him.^ It may be that all governors during the Com- 
monwealth period were so nominated. The fact remains 
however, that the assembly claimed and exercised the power 
to elect. 

In 1655 the assembly, claiming that there was no other 
authority to do so, granted a pardon. Tobacco inspectors 
and county commissioners were now appointed by the as- 
sembly instead of by the governor,^ and John Bond, because 
of factious and schismatic demeanor, was dismissed from 
his office of magistrate and made incapable of holding any 
public trust or employment.* As early as 1643 the legis- 
lature claimed the right to remove ministers from their 
churches. An act of 163 1-2 ordered that captains of ar- 
riving ships should be given directions by the executive 
council, not in its own name, but in the name of the Eng- 
lish privy council and of the assembly. 

During the last century of the colonial period it was the 
rule for the burgesses to appoint the treasurer. In one in- 
stance, in 1738, the governor was authorized (in case of 
a vacancy) to appoint a temporary treasurer. The person 

'Doyle, op. cit., i, 223. 

2 Edward D. Neill, as cited in William and Mary Quarterly, i, 79- 
Neill does not state his authority. Robertson and Chalmers seem to 
hold the idea that the English government controlled the elections. 

*Hening, op. cit., ii, 132. ^Ibid., 39. 



l68 THE LEGISLATURE OF PROVINCE OF VIRGINIA [330 

SO appointed should hold office until the close of the next 
session/ Such an appointment occurred in 1766, and the 
temporary treasurer appointed by the governor was after- 
wards appointed permanently by the assembly." The fact 
that the treasurer was appointed by the burgesses and was 
for a long time also their speaker gave them much control 
over him. They even went so far as to claim that no 
money should be paid out by him except on their order. This 
authority was denied them.^ In 1677 the king temporarily 
forbade the treasurer to pay money save on order 
from himself. Before Bacon's rebellion the agents of the 
colony had tried to get a new charter, and the assembly 
had provided funds with which to pay these agents. The 
money was to be paid out on the order of the assembly 
only, and much of it had already been paid when at a 
court at Whitehall, July 13, 1677, the king issued orders to 
the treasurer of Virginia forbidding him to pay this 
public money without an order from the king in council. 
It declared that the assembly had not been legally elected. 
This order was revoked, June 21, 1678.^ 

In 1693 th^ assembly also appointed the seventeen per- 
sons who, with Governor Nicholson, composed the board of 
trustees of William and Mary College. 

The judicial functions of the assembly were more exten- 
sive in the early colonial times than later. The change 
came in 1683 with the act of the king depriving the assem- 
bly of the right to hear appeals from the general court. 
Before 1683 the assembly showed a strong tendency to sub- 
ordinate all the courts to itself, even the general court being 
no exception. In fact the house of burgesses attempted 

^Hening, op. cit., v, 65. '^Ibid., viii, 211. 

'Hartwell, Bl. & Chil., op. cit., 62. 

^ McDon. Papers, v, 122, 237-8. 

^Fiske, Old Virginia and Her Neighbors, ii, 117. 



33 1 ] THE LEGISLATURE j^^ 

to make itself the supreme court of the colony. The act of 
1643 declaring that acts of courts or proclamations contrary 
to acts of the assembly were not to be obeyed, has already 
been mentioned.^ At the session of 1658 the sheriff of 
James City county was ordered not to obey any warrant 
unless signed by the speaker of the house; thus the bur- 
gesses took charge of the arrests at the capital." Four 
years later it was provided that the first day of each as- 
sembly should be given to hearing reports of grand juries, 
to inquiring into remissness of juries and courts and into 
the manner of executing the laws.^ A law of 1641, re- 
enacted two years later, provided that no Catholic should 
hold office; in case one should secure office, and should re- 
fuse to take the oaths of allegiance and supremacy the as- 
sembly could try him and upon conviction dismiss him from 
office, and besides impose a heavy fine upon him. This 
seems to have been an early form of impeachment.* 

Laws of 1643 ^I'^d 1645 provided for appeals to be taken 
from the monthly to the quarter courts, and from those to 
the assembly. In case of appeal to the assembly, the ap- 
pellant must give security that he would appear on the 
day set, abide by the judgment, and if he should lose, pay 
treble the damages. ° By a law of 1647 this was changed 
so that appeals might lie to the assembly only in cases in- 
volving new points of law, and where the justice of the de- 
cision was questioned by the assembly. All other decis- 
ions were to be final in the quarter court.® In 1659 all re- 
strictions were removed, so that appeals for any amount and 
for any reason, might go to the assembly. However, the 
appellant, if he lost, must pay not only the costs, but one 

^Seep. 165. Hening, op. cit., i, 264. "^Ibid., i, 503- 

^Ibid., ii, 108. *Ibid., i, 268-g. 

^Ibid., i, 272, 304. ^Ibid., 345; "> 5i2. 



1^70 THE LEGISLATURE OF PROVINCE OF VIRGINIA [332 

half the value of the debt in addition, as damages to the 
appellee/ This provision was renewed in 1661-2." A de- 
cision of the Surrey county court, said to be ex post facto 
in its nature, was reversed in 1659." About the same time 
the governor and council were made a court of admiralty 
for all admiralty cases coming within the jurisdiction of the 
colonial officials. 

In some form appeals to the assembly were allowed until 
May, 1683,* when the authority to hear them was taken 
away by the king. The circumstances that led to this action 
by the king are as follows. In order to enforce his claim 
to the Northern Neck of Virginia, Governor Culpeper 
found it necessary in 1683 to remove the judicial power 
from the assembly. He fomented a dispute on the judicial 
power between the council and the house of burgesses, the 
burgesses saying that the councilors, having passed on cases 
as members of the general court, could not sit when the 
case was appealed to the assembly. On the pretext of set- 
tling it, the matter was referred to Charles II, who immedi- 
ately deprived the assembly of all appellate jurisdiction,^' 
but provided that in cases involving £100 or over appeal 
might lie to the king. In spite of this action the burgesses did 
not immediately give up their claim to hear such cases. In 
April, 1683, they asked the governor to add councilors to 
the committee on public claims. The governor summoned 
the house and said that " he was sorry to see such obstruc- 
tions at the beginning of the assembly, as were shown by 
the request for councilors to be added to the committees " 
of private causes, as the king had ordered no appeal to be 

' Hening, i, 541. This did not apply to Northumberland county be- 
cause of its remoteness. No case under 3000 pounds of tobacco in value 
could be appealed from that county. 

'^Ibid., ii, 65-6. 'Ibid., i, 516. 

''Ibid., iii, 550. 'Ibid., iii, 550-1. 



333] ^^^ LEGISLATURE j^t 

allowed from the general court to the assembly. The bur- 
gesses said that they knew of no such orders of the king 
and asked to see the instructions. Meantime, in order that 
the house might be united, it ordered that no member was 
to leave James City without permission from the speaker/ 
Nevertheless, the appeals from the general court to the as- 
sembly ceased, and the house lost the place of supreme court. 
However, the committee on claims became a permanent fac- 
tor in the house and through the courts of claims in the 
counties and petitions therefrom, a vast amount of business 
that was partly judicial in character was done. 

The question of appeals to England still continued to be 
a source of trouble. In 1704 the governor objected to an 
act of a previous assembly as an invasion of the preroga- 
tive, in that it prevented the king from establishing courts 
of record other than those recognized by that legislature, 
and did not recognize appeals to the crown. The governor 
asked that changes be made to meet these objections." In 
1707 the board of trade said that the act would not pass." 

In a certain sense cases of contempt of the house were 
treated as judicial matters, therefore they will be consid- 
ered in connection with that topic. Persons outside of the 
house were often declared guilty of contempt of the house 
and punished therefor. A few examples will illustrate. 
It seems that some persons had said that the acts of as- 
sembly had no binding force and therefore that no one was 
obliged to obey them. An act of 1682 imposed heavy penal- 
ties on any one who was convicted of such offense.* In 
1744 John Austin of King William county threatened to 

^Va. Mag. of Hist., x, 238. See also Hartwell, Bl. & Chil., op. 
cit., 25. 

^Jour. ofCoun. as Upper House, i (Apr., 1704?), 14. 
''■ Chalmers, Hist, oi Rev., i, 318. ''Hening, ii, 501-2. 



1^2 THE LEGISLATURE OF PROVINCE OF VIRGINIA [334 

raise a body of men and to drive the burgesses into Hampton 
river. For this he was brought before the house, acknowl- 
edged his folly and having made his submission he paid the 
fees and was released/ During the session of 1772 a wit- 
ness before the committee on religion was arrested, not- 
withstanding such witnesses were supposed to be exempt 
from arrest. Roger Gregory who caused the arrest and 
the under sheriff who made the arrest were declared guilty 
of high contempt and of breach of the privilege of the house. 
The under sheriff Avas later excused and upon Gregory's 
declaration that he did not know of the rule, he was ex- 
cused on paying fees." Some of the many cases of breach 
of privilege and the punishment therefor have been re- 
ferred to above. ^ 

Enough has been said to show that the judicial power 
of the assembly was quite extensive before 1683; that at 
that date the king deprived the assembly of the right to 
hear appeals ; that, in spite of the loss of that power, the bur- 
gesses, through the committee of claims and courts of claim, 
continued to exercise considerable judicial power. When, 
in 1775, the royal authority was overthrown, the assembly, 
as in 1652, assum.ed the entire control of the government, 
the judicial power included. 

Treaty-making in the strict sense can exist between two 
or more independent nations only. It would therefore not 
be a power possessed by the colonies. Yet something in the 
nature of a treaty, perhaps better called an agreement, was 
resorted to cjuite frequently in the colonies. Since the 
legislature took part in some of these, brief reference to 
them will be made. 

At the session of 1643, agreements regulating commerce, 

^ Jour, of Burg., Sep., 17/14, 38, 44. 

'Ibid., 1772, 54, 57-8. ^See pp. 89-91, 142-143. 



335] T^HE LEGISLATURE ^y^ 

made with Maryland two years previous, were ratified/ 
Three years later a treaty was made with the Indians and 
penalties were provided for its violation." The arrange- 
ments with the parliamentary commissions at the surrender 
of 1652 were in a certain sense treaties.^ In 1666 the gov- 
ernor and council made agreements with Maryland and 
Carolina on the cessation of tobacco planting, apparently 
with the consent of the assembly.* It is quite possible that 
most of these arrangements were made by the executive and 
ratified by the assembly. In the eighteenth century, the 
royal power having become more firmly fixed, and a gov- 
ernor or deputy being nearly always present, this became 
the rule. Such agreements or treaties as were found neces- 
sary were made by the executive, the assembly having no 
part except helping to carry them into effect, or possibly re- 
fusing to do so. Several treaties with the Indians were 
made during this time. 

The establishment of two houses occurred about 1680. 
Before that time burgesses, councilors and governor, all sat 
together in one house. Nevertheless, before 1680 there are 
a few references in the records which indicate different 
groups, though probably not a separation into two houses. 

The assembly of November, 1647, speaks of " all mem- 
bers of both houses," but it is known that the two groups 
did not sit separately when legislating.'^ Lodge says, " The 
burgesses granted two houses to Berkeley" in 1643,® but 
Doyle thinks they voted together as before.^ When the 
burgesses assumed all the power in 1652, it was voted that 
the governor and council should be members of that as- 

^Hening, op. cit., i, 276. '^Ibid., i, 323-6. 

3 See articles, ibid., i, 363-8. ^■Ibid., ii, 250-3. 

^ Ibid., i, 341. 

^ Lodge, Eng. Col. in Amer., 15. 'Doyle, op. cit., i, 218. 



174 THE LEGISLATURE OF PROVINCE OF VIRGINIA [336 

sembly, but that they must take the oath the burgesses took/ 
It will be remembered that when, in 1659, ^ committee 
which had been appointed to revise the laws was about to 
report, the question arose as to whether the laws should first 
be considered by the burgesses in private instead of in 
the presence of the governor and council with the result 
that the governor and council were excluded." These 
things, along with the separate control of the burgesses over 
revenue and expenditure, indicate a growing independence 
of the two branches, with separate sittings for certain 
matters, but with no complete separation before 1680. 

Beverley ^ says that the separation came with the dispute 
over the right of the burgesses to hear appeals from the 
courts. It seems that the burgesses thought the council, 
having passed on the cases as a court, ought not to be pres- 
ent in the assembly when the burgesses heard them. This 
led to a separation for other purposes as well, and the two 
houses became finnly established. 

It will be recalled that the first method of legislating for 
Virginia, that by the company and by councils did not 
recognize the colonists as self-governing; but when the step 
which did give such recognition was taken in 1619, that step 
created a precedent which the Stuart kings were bound to 
recognize. Because the colonists were represented in the 
legislature, and later largely dominated that body, and be- 
cause the legislature became more and more important in 
the directing of all colonial matters, the colonists soon be- 
came important factors in the government of Virginia, and 
such they continued to be during the remainder of the 

^Hening, op. cit., i, 373; Howe, op. cit., 65; Campbell, C, op. cit., 
238. 

^Honing, op. cit.. i, 497; Howe, op. cit., 66; Howison, op. cit., 310; 
Campbell, C, op. cit., 238. ^Beverley, 82; Doyle, i, 262-3. 



337] '^^^ LEGISLATURE -^yc 

colonial period. The Virginia colony was a good illustra- 
tion of the vigorous assertion of the Anglo-Saxon spirit of 
self-rule and adaptation to environment. The long con- 
flict between government by appointees of a distant power, 
and government by representatives chosen by the people 
themselves, ending as it did in victory for the people, shows 
that among English people in Virginia at least the principle 
of representative government was stronger than absolutism. 

At first, as the legislature sat in one house, with governor, 
councilors and burgesses all together, the people's repre- 
sentatives did not stand out distinctly from the other parts 
of the body; but after about sixty years the legislature 
separated into two houses, those members who were chosen 
by the people as usual becoming the lower house or the 
house of burgesses. This separation gave more opportun- 
ity for successful contests by the elective branch against the 
appointive branch of the legislature and against the other 
parts of the g-overnment. The efforts of the burgesses to 
gain power for themselves and for the people now became 
more noticeable. These efforts culminated in the revolution 
of 1776 when the legislature was the center of opposition 
to the acts of the English government and ultimately seized 
all the functions of government and reorganized it on a new 
basis ; a basis of complete independence and complete con- 
trol by the people. Thus ended the long struggle for power 
which the people through their representatives had carried 
on. 

While these struggles were going on, the internal organi- 
zation of the legislature itself, the details of electing its 
members, their qualifications, their privileges and restric- 
tions, the details of organization and procedure, the place 
of the governor and council, the all-important subject of 
the control of public moneys, were being worked out and 
settled. When the revolution came the Virginia legisla- 



1^6 THE LEGISLATURE OF PROVINCE OF VIRGINIA [338 

ture had developed all the essential features of a law mak- 
ing body. 

Thus it will be seen that in the preceding discussion an 
attempt has been made to give an historical account of the 
origin of the legislature of colonial Virginia, and of its in- 
ternal development from the beginning of government in 
Virginia to the revolution of 1776. 



BIBLIOGRAPHY. 



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Andrews, E. Benjamin, History of the United States, 2 vols., New 
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*Ballagh, James Curtis, White Servitude in the Colony of Virginia, 
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*Bancroft, -George, History of the United States, 6 vols.. New York, 
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*Beverley, Robert, The History and Present State of Virginia, London, 

1705- 

*Bishop, Cortlandt P., Colonial Elections, Columbia College Series, 
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Bourne, E. G., Demarkation Line of Alexander VI, in Yale Review, 
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*Brown, Alexander, The First Republic in America. Houghton, Mifflin 
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*Brown, Alexander, English Politics in Early Virginia History. Hough- 
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339] ^n 



1^8 BIBLIOGRAPHY [340 

*Bruce, Philip Alexander, Economic History of Virginia in the Seven- 
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*Campbell, Charles, History of the Colony and Ancient Dominion of 
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Campbell, J. W., A History of Virginia from its Discovery to 1781. 
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Chandler, Julian A. C, Representation in Virginia. New York, Balti- 
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*Channing, Edward, Town and County Government in the English 
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Colonial Records of Virginia, Richmond, 1874. Also found in collec- 
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*Cooke, John Esten, Virginia: A History of the People (Am. Corn- 
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*Doyle, J. A., English Colonies in America, 3 vols.. New York, 1889. 

Drake, Samuel Adams, The Making of Virginia and the Middle Colo- 
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*Fiske, John, Old Virginia and Her Neighbors, 2 vols., Boston. 



34 1 ] BIBLIOGRAPHY 1 79 

*Foote, William Henry, Sketches of Virginia Historical and Biograph- 
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l8o BIBLIOGRAPHY [342 

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*Robertson, William, History of America, 2 vols., Albany, 1822. 

*Robinson MSS., Va. Hist. Soc. Lib. 



jg2 BIBLIOGRAPHY [344 

*Rymer, Thorn., and Sanderson, Robert, Foedera, Conventions, Literae, 
et Cujuscunque Genesis Acta Publica inter Reges Angliae et alios 
quosvis, Imperatores, Reges, Pontifices, etc. 
2d Edit., 20 vols, (last 4), Lond., 1727-35- 

*Sainsbury, W. Noel, Calendar of State Papers, Colonial Series, 1574- 
1696, 9 vols. [Relate to Am. and W. India.] Longmans, Green, 
Longman & Roberts, Lon., 1860-1903. 

Sainsbury Papers [11 vols, unnumbered and 8 partly numbered. Longer 
abstracts than appear in printed vols., and covering time from 1573- 
1730.] MSS. Va. St. Lib. 

Scott, Eben G., The Development of Constitutional Liberty in the Eng- 
lish Colonies of America, New York, 1890. 

*Seeley, J. R., Expansion of England, London, 1891. 

Smith, John, General History of Virginia, New England, and the 
Summer Isles, 1624, reprinted by Edward Arber, English Scholars 
Library, Birmingham, 1884. 

*Spotswood, Alexander, Official Letters of, 2 vols., Va. Hist. Soc. Col- 
lect., Richmond, Va., 1882. 

*iStanard, Wm. G., and Mary Newton, The Colonial Virginia Register, 
List of Governors, Councilors and Other Higher Officials, and 
Members of House of Burg. Joel Munsell's Sons, Albany, N. Y., 
1902. 

*Stith, William, History of the First Discovery and Settlement of Vir- 
ginia, Williamsburg, 1747. 

*Stokes, Anthony, A View of the Constitution of the British Colonies 
in N. Amer. and W. Indies. B. White, London, 1783. 

*Story, Joseph, Commentaries on the Constitution of the United States, 
2 vols., Boston, 1891. 

Thwaites, Reuben G., The Colonies, New York, 1895. 

Trumbull, J. Hammond, The True-Blue Laws of Connecticut and New 
Haven, Hartford, 1876. 

*Tyler, L. G., England in America, N. Y., 1905. 

Tyler, M. C, Patrick Henry (American Statesman Series), New York, 
1890. 

*Virginia Historical Collections, New Series, 7 vols., Richmond. 

*Virginia Magazine of History and Biography, 12 vols., Richmond. 

Weeks, Stephen B., Southern Quakers and Slavery, J. H. U. S., extra 
volume XIV, Baltimore, 1893. 

Winder, F. A., Virginia Manuscripts from British Record Office, 1607- 
1776. 2 vols., Va. St. Lib. Vol. I, 1607-1676; Vol. II, Bacon's 
Rebellion. 

Winsor, Justin, Narrative and Critical History of America, 8 vols., 
especially volume III, New York, 1884. 

Wirt, Wm., Sketches of the Life and Character of Patrick Henry. 
Phila., 181 7, James Webster, Pub. 



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The library contains over 400,000 volumes and students have access to other 
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VOLUME XVI, 1902-1903. 547 pp. Price, $3.00. 

1. Tlie Past and Present of Commerce In Japan. 

By Yetaro Kinosita, Ph.D. Price, ^1.50. 
. 2. The Employment of Women In tlie ClotMng Trade. 

By Mabel Hurd Willbt, Ph.D. Price, ^1.50. 
3. Tiie Centralization of Administration in OMo. 

By Samuel P. Orth, Ph.D. Price, $1.50. 

VOLUME ZVII, 1903. 635 pp. Price, $3.50. 

1. *Centralizing Tendencies in tlie Administration of Indiana. 

By William A. Rawles, Ph.D. Price, $2 50. 
3. Principles of Justice in Taxation. 

By Stephen F. Weston, Ph.D. Price, $2.00. 

VOLUME XVIII, 1903. 753 pp. Price, $4.00. 

1. The Administration of loTra. 

By Harold Martin Bowman, Ph.D. Price, $1.50. 
3. Turgot and th.e Six Edicts. By Robert P. Shepherd, Ph.D. Price, gi. 50. 

3. Hanover and Prussia, 1795-1803. 

By Guy Stanton Ford, Ph.D. Price, ^2.00. 

VOLUME XIX, 1903-1905. 588 pp. Price, $3.50. 

1. Josiali Tucker, Economist. By Walter Ernest Clark, Ph.D. Price, ^i.^o. 

3. History and Ci'iticism of the Xiabor Tlieoi-y of Value in English 
Political Economy. By Albert C Whitaker, Ph.D. Price, gi. 50, 

3. Trade Unions and the La-w in Ne^w York. 

By George Gorham Groat, Ph.D. Price, Ji.oo. 

VOLUME XX, 1904. 514 pp. Price, $3.00. 

1. The Office of the Justice of the Peace In England. 

By Charles Austin Beard, Ph.D. Price, ^1.50. 

3. A History of Military Government in New^ly Acctuired Territory of 

the United States. By David Y. Thomas, Ph.D. Price, J2.C0. 

VOLUME XXI, 1904. 746 pp. Price. $4.00. 

1. *Treaties, their Making and Enforcement. 

By Samuel B. Crandall, Ph.D. Price, Ji. 50. 
3. The Sociology of a New York City Block. 

By Thomas Jesse Jones, Ph.D. Price, $1.00. 
3. Pre-Malthusian Doctrines of Population. 

By Charles E. Stangeland, Ph.D. Price, $2.50. 

VOLUME XXII, 1905. 520 pp. Price, $3.00. 

The Historical Development of the Poor La^r of Connecticut. 

By Edward W. Capbn, Ph.D. 

VOLUME XXIII, 1905. 594 pp. Price, $3.50. 

1. The Economics of Land Tenure in Georgia. 

By Enoch Marvin Banks, Ph. D. Price, ji.oo. 
3. Mistake in Contract. A Study in Comparative Jurisprudence. 

By Edwin C. McKeag, Ph.D. Price, $1.00. 

3. Combination in the Mining Industry. 

By Henry R. Mussey, Ph.D. Price, gi.oo. 

4. The English Craft Gilds and the Government. 

By Stella Kramer, Ph.D. Price, $1.00. 

VOLUME XXIV, 1905. 521 pp. Price, $3.00. 

1. The Place of Magic in vhe Intellectiial History of Europe. 

By Lynn Thorndike, Ph.D. Price, 75 cents. 
a. The Ecclesiastical Edicts of the Theodosian Code. 

By William K. Boyd, Ph.D. Price, 75 cents. 

3. *The International Position of Japan as a Great Power. 

By Seiji G. Hishida, Ph.D. Price, ;?2.oo. 



^DEC 03 









VOLUME XXV, 1906-07. 600 pp. Price, $4.00- 

1. *Municlpal Control of Public Utilities. 

By Oscar Lewis Pond, Ph.D. Price, $i oo. 

2. The Budget in tlie American Commonwealtlis. 

By Eugene E. Agger, Ph.D. Price, $1,50. 

3. The Finances of Cleveland. By Charles C. Williamson, Ph.D. Price, ^2.00. 

VOLUME XXVI, 1907. 559 pp. Price, $3.50. 

1. Trade and Currency in Early Oregon. 

By James H. Gilbert, Ph.D. Price, $i.oo. 

a. XiUtliers's Table Talk. By Preserved Smith, Ph.D. Price, $i.oo, 

3. The Tobacco Industry in the United States. 

By JMeyer Jacobstein, Ph.D. Price, J1.30. 

4. Social Democracy and Population. 

By Alvan a, Tennev, Ph.D. Price, 75 cents. 

VOLUME XXVII, 1907. 578 pp. Price. $3.50. 

1. The Economic Policy of Robert Walpole. 

By NORRIS A. Brisco, Ph.D. Price, gi.50. 

8. The United States Steel Corporation. 

By Abraham Berglund, Ph.D. Price, $1.50, 

3. The Taxation of Corporations in Massachusetts. 

By Harry G. Friedman, Ph.D. Price, $1.50. 

VOLUME XXVIII, 1907. 564 pp. Price, $3.50. 

1. DeWltt Clinton and the Origin of the Spoils System in New York. 

By Howard Lee McBain, Ph.D. Price, ^t. 50. 

S. The Development of the Legislature of Colonial "Virginia. 

By E. I. Miller, Ph.D. Price, $1.30. 

3. The Distribution of Ovv^nership. 

By Joseph Harding Underwood, Ph.D. Price, J1.50. 

VOLUME XXIX, 1908. 

1. Early New England To^vns. 

By Anne Bush MacLear. (In press.) 

3. The Enforcement of the Statutes of Liaborex-s. 

By Bertha Haven Putnam. {In press.) 



The prieefor eaeh volume is for the set of monographs in paper. Each volume, 
as well as the separate monographs marked *, can be supplied in cloth-hound copies, 
for 50e. additional. 



The set of twenty =eight volumes (except that Vol. 11 can be supplied 

only in unbound nos. 2 and 3) is offered bound for $90. 

Volumes 1, III and IV can now be supplied only in 

connection with complete sets. 



For further information, apply to 

Prof. EDWIN R. A. SELIQMAN, Columbia University, 

or to the MACMILLAN COMPANY, New York. 

London: P. 5. KING & SON, Orchard fiouse, Westminster. 



